directly but i would like to spend one minute highlighting five factors that when taken together make this a case that is unlike any other this court has probably ever seen and unlike any case this court ever will see i'm just not on the first one and the problem that we have is that you've had to pick record decisions into district court decisions or for finding that he was competent we are not asserting that that mr michael was incompetent your honor if i could go through this list of five things i promise i will get directly back on that second that you read steen the court appointed psychiatrist on whose opinion the district court relied in finding that mr michael's waiver was valid involuntary brought to this court within two months of the dismissal of counsel and the dismissal of mr michael t v s petition to say that he was no longer certain and had serious doubts as to whether or not mr michael's waiver actually was voluntary likewise judge because grove who was representing mr michael was back before this court again two months after the decision by the district court and and has pressed this issue with the court ever since that time that mr michael's initial waiver wasn't valid free mr michael has never had any federal review of any of his constitutional claims claims that this court has previously identified as being significant forth at trial mr michael had possibly even worst lawyer eying of any person who has ever been before this court he had a capital defense lawyer who stipulated to his death sentence stipulated to the absence of mitigating evidence and did so even though there was high quality well recognized and quite frankly heart wrenching that occasion evidence available including red flags of brain damage physical emotional abuse or neglect suicide attempts other forms of mental illness  a few days before trial and trial counsel actually had to be ordered by the trial judge to go out and investigate and at the p c r a hearing in this case even after having been ordered to investigate mitigation trial counsel testified that his investigation was at best cursory and then there's there's the fifth factor if i might which is that this is a capital case which means that a decision not to grant review will result in this mentally impaired man who has substantial constitutional claims never had the penalty determination by a judge or jury and never had federal reviews of this claim being executed this court now has equitable power to ensure that that doesn't happen and i would urge that that the court exercise that equitable authority under rule sixty b let's come back to the beginning then you're saying that he's mentally impaired it did not affect his four march of two thousand two thousand and five he said he didn't want to appeal and then we said look you've got to make a decision and then the next day says he did want to appeal so ultimately we sent it back without a ruling on the a forty eight issue for another fourth competency hearing and he was it was determined in two thousand and seven that he was competent for the fourth time but your honor your honor when he was sent back for reno and at that point he was determined that he was competent to decide that he wanted to go forward with his appeals and so it was found that he was competent to make a decision that he wanted to live and to go to his claims i think the much more telling thing is that webster i'm sorry dr wed steam was not authorized to do an evaluation at that point as to whether or not there had been a voluntary waiver a waiver that was was a manifestation in the first in petition but i want to i want to make absolutely clear for the court what the opinion in gonzales says the last paragraph of justice scalia's opinion says and i quote we the quote starts with the words we hope that that is the holding of the case and that's exactly what you have here you have a case in which there was no merits review at any time of mr michael's petition he has not asserted claims of error in his sixty being motion of his state conviction he has not we assert that you know i don't think the holding could be clear and that's the way the court ends its opinion but for now five is discussing the issue of whether or not someone who has had merits review of their claims can go back and say wait a second i've got something here that i need to tell you that goes to the integrity of the proceeding and therefore what you should do is reopen this proceeding because the great integrity of the proceeding has been compromised either by pratt of one of the parties whereby whereby lack of subject matter jurisdiction for example the case that's in fact cited in footnote five is a case where somebody committed fraud on the court and so you know i read footnote five simply to say that we want to make clear where there is fraud on the court for example and there's been a m that is that even in footnote five the supreme court says that the district court's dismissal based on the movement's own conduct does not ordinarily go to the integrity of the proceedings again you know this is not an ordinary case this is a case where movement's own conduct is something that that was impelled by his mental illness and the very doctor appointed by the court to discuss that with the district court and render his opinion to the district court as soon as he saw that that mr michael was vacillating he had based his entire opinion on the fact that he believed mr michael's desire to waive had been consistent over time and when mr michael vacillated and said well i didn't want i didn't want to have my claims reviewed dr watson said wait a second the whole basis of my opinion is is in question now and i need to re evaluate him because i don't think i have serious doubts as to whether or not that was a voluntary waiver given what has happened within weeks of this petition being dismissed and judge castro came to this court over and over again and said you know take it please you know take a step back and do what you have done in other cases do what has been done in other in other circuits such as the case in the a capital again that's late as to whether or not he wants first time review of his federal hate his claims then then we should allow him to do that and we should want him we should one at that time any more matters relating to my sentencing in a capital case like responses that is a that's counter intuitive it is to be investigated this was investigated and it was found that it valid waiver and people can give up their constitutional rights i mean that's just the fact that they can do it if they are found to be competent if this person is found to be competent or times and it's also found directly by judge with asking why he was a district judge that he has waived how do you how do you go further your honor i think i think the issue  mr michael's competency is is one that you know is really not entirely relevant here because the issue is really the voluntary like he was in  great case that doesn't make a difference what he's done he will back up no that's that's absolutely true and but the other thing is you know i think as as in any of these cases you have to look at the totality of the circumstances in and of course you're directed to do that by by the cases you're this is this is an equitable determination you've had cases before this court where where there hasn't been an assertion of incompetence or involuntary miss and you've permitted people who have vacillated to go forward with their capital federal appeals but but there are you know and this is i think also where the district court abused its discretion in mr michel's  and and what what we asserted was not a claim that went back to the state conviction it's a claim that went back to the determination that mr michael ought might not be a better argument to say that the second is excessive twenty two fifty four petition where it was a second or successive because he never had the merits ruled on yes that's exactly what yes absolutely never had the let's assume for just a moment you're right then the question becomes whether the sixty the motion whether it be sixty two or sixty six was now if it was sixty two as europe was in coun argues if it's not timely here the first evidence we have of a possibility that's all that like i can find in the record is a possibility of asperger's assuming for the moment asperger's could stage of this litigation judge has rove came to this court and said this needs to be reevaluated and she presented every time judge when dr  district court said i can't do that i don't have the authority to do that or did say that look if i had jurisdiction then i would agree that it was timely because of the way the procedural or two thousand level decision worked out on the one where you yes and so ok let's assume you were on that to now you have to show that there were extraordinary circumstances in order to reopen what are your extraordinary circumstance the extraordinary circumstances are actually we have quite a number of them we have a mentally impaired litigant we have a court appointed psychiatrist who thinks that the voluntariness of mr michael's waiver when he gave a ruling an opinion in error because he is an initial opinion was based on what he thought was a consistent opinion of mr michaels and he reevaluated that and i might point out that he reevaluated that based on on a lot of evidence that was before him mr michael has never had federal review but he does have substantial meritorious claims in this case claims that this co itself has recognized as being significant this court itself was troubled enough by this case that it initially it initially remained of the case for full federal review of the constitution as it was done itself is not a unitary concept it very some degree it can vary over time interferes with an individual's functioning at different times and in different ways there is mental illness that can interfere with the voluntariness or the decision someone makes and i i use the word decision in you know guardedly because it's different than incompetence and and the supreme competent how do you prove the the opposite of that is somehow he yes he's competent he can make a decision on his own and legally but he's he's too mentally ill in order to do that i'm not not that he's no but that he's that his decision making was impaired by by his mental impairments in other words he was in a position where conditions of his confinement and his his obsessive compulsive disorder which was diagnosed when he was still in state court these asperger's which was you know which was diagnosed and and where wants to go on living he's been found competent to decide that he wants to go and at that time his mental illness and not receded to the point where he can see that far where his mental illness has receded to that to as of this point but at the those things were interfering so badly were his desire to move that at that time he didn't desire to live but within a few months he began to see his way clear the mental illness receiving enough so that he could actually consider the options it's like you know if you are if you have a gun to your head you can see that as being an involuntary decision making well for mr michael his mental defects were right having but first of all your honor let me say that that the ultimate goal here today is that the court undertake identify this properly as being a sixty six notion and then on its own hatless review then of course the determination would have to be made as to whether or not he's made out meritorious constitutional claim and that would be done by the district court and if he and  and that's what we're seeking and that's that's certainly the you know as a very strong claim here is that he had a lawyer who performed deficient beyond anybody's imagination and is constitutional claims that is in his eighty's titian and yes trial counsel was so professional his performance that he never did anything to investigate the crime in this case  your honor i don't think i can answer that question in the absence of and with estimation that took place that should have taken place back at the time of this of this crime but certainly we have put probably did have and he was told by the judge this project to investigate he did two weeks before our sentence and there were some questions of relating to it whether his brother had some part of this and that the attorney your honour's was that he didn't want his family drugged before the court and that's that's true but but mr michael also said very clearly that he wanted to put the commonwealth to its case he had there was there was evidence record that was not building evidence there was evidence of his remorse there was evidence of his suicide attempts there was evidence in the pre sentence report  presented to a mental health expert who could have testified without dragging his family into court which was something that he considered to be very painful but i would also point out that you have a lawyer who jurisdiction over the sixty the motion by considering it to be a second or successive petition when in fact never once had the merits been dealt with on a first edition correct and that's with the footnote and gonzales that's been discussed  is all about what it says is that if the reason the merits aren't considered is the defendant's own conduct were the conduct of his counsel that's an exception to that rule where if the merits aren't considered this is in the s didn't deal with the merits however they pointed out that in the alternative that this was the sort of second bite at the apple for those defendants and based on footnote five that would be another reason for not considering this to be a rule sixty b motion it's actually an alternative holding in both cases have certain i ask you this question a procedural question is there any other preceeding any court state or federal and then this from the state court he waived them voluntarily and now is trying to present them again and that would actually constitute a second petition it's already been decided that he waived at the first time around and judge nasty as a district judge made this terminations he did specifically say that this was a voluntary waiver now counsel pointed out that judge cause growth has tried to raise that and i'm not exactly clear on how he would do that except that's an appeal from the finding of waiver and the appeal that was before this court until two thousand and eleven actually involved  in effect asking for a second chance to have the merits the term unfavorably well if you read footnote no five it says that if it's the defendant's conduct that prevented the first time and that is equivalent i guess you would say of the merits determination because that way it was so solid the fifth circuit looked at it talked about your position somewhat favorably but then backed off and dealt with it another way dealt with and that's correct and each court said that and that but they added also this is a second bite at the apple type case which is what footnote five is referring to you there would be an exception for  judgment and now here ten years later eight years time this motion was filed we simply to set that aside and it's our position that the what  let's assume it's gone to the next point then the sixty let's assume for the moment without conceding that the sixty b motion was adequately brought how would you dress how how it was not time this a sixty two motion he keeps referring to additional evidence and that's new evidence simply calling it additional instead of new doesn't change its nature but of over sixty six as the reasonable time how system review this time is unreasonable along you know there are questions early on about this defendant's obsessive compulsive disorder and so forth there are plenty of reasons to question this so we're talking about still waiting from two thousand four even if one assumes that it was after the district court decision until two thousand and twelve to file the response to that is well we couldn't because it was in the pure pending under this court's precedent that doesn't stop filing of a rule sixty b motion what happens then is that the district judge looks at it and issues in the word are saying that this is something that has substance and i will look at it that is to be provided to this court for in form of a motion for reaming and that now exists in rule of civil procedure sixty two point one and that's the sickly allows for this  became effective in two thousand and nine we're still talking about three years later after that the cases cited by opposing counsel all predate rule sixty two point one they really are motion this is far from timelike now let's let's go to the merits which is sort of the most if we if we get that far it was sixty the motion were granted it's a little bit puzzling three or four times now he's been found to be competent i don't know what counsel could have done pretty trial to change the defendant's competency so the underlying plane itself has no merit it would have been fu pursue that avenue and so that claim simply doesn't survive you know even a cursory review there was the ineffective assistance of counsel claim regarding the stipulations that the defendant was competent he decided to do this stipulating is something that is permissible in every court in that way it was the then didn't who prevented the sentence or from hearing any further mitigating circumstances with respect to the information that was before the trial court trial court has discretion to decide that that doesn't amount to a mitigating circumstance it made that decision premised on the fact that mr michael never developed the argument and never developed the evidence so without knowing to what extent these various mental health problems may have affected his thinking the trial court certainly was with him its discretion to decide that that doesn't constitute mitigating factors in finally the voluntariness of the guilty plea that's been litigated repeatedly and once again the defendant  arguments further i don't know one of them well i think part of that may be that if you ever got to the merits that yes maybe he was competent to take certain actions but the council should have on his own looked at mitigating circumstances and had he done so he would have discovered that there were at least a number of cases or a number of avenues that he should have explored in have come up with some significant mitigating evidence i mean obviously if you have two aggravating circumstances and ending on fire  conviction then you really have to do it all depends life or death on if you come up with something on mitigating and i agree your honor except for the fact that the defendant didn't want any mitigation and he stipulated that there was no m so anything the council did in that regard simply was outweighed by what the defendant personally chose to do i don't know how that you can find prejudicial ineffectiveness under those circumstances this defendant did not cooperate did not want to spam we involved and frankly to present this sort of mitigation you would need the family involved one question i have you must know it was what are the extra assuming we get the sixty six were the extraordinary circumstances again you're suggesting the extraordinary circumstances are that  mr michael's waiver was the manifestation of his brain damage and his mental illness that the doctor on whose on his opinion a district court relied for a finding that his his waiver was voluntary very soon after the hearing was over came to this quick went to this court and said you know i have to reconsider that opinion we've seen that but yeah and and but did he try to he tried to he tried to get reevaluated and the evaluation that he was permitted was only one of whether or not he was competent to go forward with his appeals not whether there was voluntariness in his waiver initially to the district court and that by the way has never been reviewed by this court on appeal because this court on appeal has held to such a narrow line of only reviewing the eight forty eight  issue here we are this quote actually found that the district court erred in removing both offices counsel and judge cost curve as counsel you don't find that it was prejudicial in two thousand and seven of their being aspergers yes and in two thousand and four that the that the waiver wasn't voluntary even based on his determination men of obsessive compulsive disorder and and wind damage and other factors here on of least three different occasions and then mr travis was here on on at least one occasion in which time each time they said please samples back or  asperger's the decision doesn't have to turn on that that evidence that we were able to pay for the quote because of the kindness he proceedings supports and confirms what the involuntary ness that dr the day before his clancy proceedings which was channels before his scheduled execution because we fought with the person all of the period of time of his kind of the proceedings to get her permission to actually be able to with with mr michael in fact that he was court appointed and didn't feel that he could do that unless the court ordered him to do that which was the case all along is that he had never had the commission but let me just say this also in face the extraordinar some language of a that really hurts or we say that if a defendant has participated in a waiver proceeding is not allowed without exception to change his mind whatever juices the doctrine of waiver will be rendered purposel and that's to some extent what a lot of people have argued in this particular case that he keeps going back and forth and at some point he's a if he's found competent he's allow to the cipher himself and if you are competent then you are able to make a decision on your own rationally how does something override that without making you incompetent because when you feel that you do not have a choice in the matter and it is a mental compulsion that is different from being able to consult with a lawyer and articulate to a court that you want to make a choice mr michael doesn't have enough and didn't at the time have enough insight to be able to explain why he felt like he needed to die at that time but let me also say that the whole purpose of rule sixty six is that it constitutes is this court has said in other courts have said a grand reservoir of equitable power to do justice in a particular case this is a case which has strong public interest in ensuring that someone has has federal review of his claims that this circuit in ruby's said quote universally favor judgment on the merits and the underlying case here most affected and is deemed to be competent makes a decision whether we agree with it or not to say let it go your honor people make decisions on very serious matters at different times and those decisions get changed at different times this very quiet remanded this case for a full merits review and then changed its mind about that and i don't want to to suggest that that was an improper decision at that time because of the legal issues that were square before the court this court felt it was necessary to do that and to say we're not going to be able to come back and give some guidance to the district courts about what to do in cases like this this is a man who for reasons that may ultimately be unknowable felt at the time of the district and his federal habeas petition was filed that that he wanted to die and he didn't want to but he gave his claims he came back miko a couple of days before sentencing said that he wanted to go forward with with sentencing the court said to him the quote said to him if you want to die that camera range or so this is not new ground that we're covering here this is exactly the type of case that has been for the squad in the past i believe this is a totally appropriate me say i in some ways i can i have four children of my own and i was at the clemency hearing i heard his family speak and it this is this is a terrible terrible tragedy and frankly i you know i was reluctant to say that that the cloning innocence was not was not one that had much chance of winning at all and probably has no chance of winning and i  who hasn't spoken to the members of mr michael's family at the beginning when both came to him asking for a mental health evaluation who has to be number two to investigate with a geisha who after mr maaco attempts  why you're asking the question but but that is that is true that if you are on a firm right now then there is a very great likelihood that this national repaired man who's