hear ye hear ye hear ye the united states court of appeals for the th circuit is now open according to law god save the united states in this honorable court thank you sasha name we have a horse the united states of america location is different than it would be i had a technical problem right before the lawn so please let me know if you don't hear me through as well as you might in any event may get to the argument in order to prevail here mr israel has to prove litigation we believe mr israel amply satisfied both of those problems and that this court should reverse the judgment below and grant mr israel's twenty two dollars let me start with what i think is the fundamental point in this case which is that mr israel has a profound mental illness i don't think our friends on the other side disagree with me i think everyone agrees mr israel has been mentally ill his whole life he was mentally ill when he committed these crimes and he still severely mentally ill the government may have a different view on the legal consequences but just the fact that mr israel is a schizo friend and has extraordinary challenges with mental illness i don't think anyone disagrees so the question to me at least with respect to this case is whether over the wire having the red flags that his client is severely mentally ill in the way that the street israel clearly has is obligated to make some kind of investigation into what kind of mental illness that is what use could be made of the mental illness and to present defenses based on the mental need to at least call this doctor call his psychiatrist and find out what is the level of schizophrenia or mental illness are you and i think if you do that you have a very good argument or at least the government has a very good argument that look we've made a strategic contending that there was enough here for his counsel to least seek a competency hearing with respect to mr israel's competence to go forward and the fact that he didn't look into the people is what is the adequate assistance of counsel and caused him prejudice by not seeking help you know insta made one thing out there i had a problem with marines record as any expert ever said that he was incompetent in their expert opinion at the time that he pleaded guilty and all your honor well b s right why hasn't that seem to me that's a necessary element to truly show what's the point of the hearing you know experts go yes in my opinion at the time he adultery he was up and well your honor i think the way i would answer that is to say that that is what we're saying was wrong with the representation below is that there was no psychiatric story is real and we don't have in the record anything that could tell us was he incompetent at that time well i think it makes me there's no right there's no basis for granting relief unless somebody says yes at the time he pled guilty he was and he seems to me unless somebody says that there's nothing a court and i have to say i disagree with that a runner i think that the our point is not that there was enough in this record to show definitively that he was incompetent it's that had counsel press that point and gone and gotten even investigated the question we would have advent of vailable in our records so the prejudice their his client was competent even though he had no basis to come to that conclusion he hadn't done even a phone call to his client's psychiatrist or treating doctor to ask him look what is the depth of this person psychiatric illness and i think that is where the prejudice comes from with respect to the competence now i didn't have to get to show what puppet council would have discovered had he done then destination your honor i think i heard you you don't have to show a competent counsel would have discovered have you done this i don't think we need to show what he would have discovered i think what we can show is that he didn't do any investigation and that had he done so there's a very good reason to believe he would have found a lot of evidence that mr israel is not competent even on this very sparse record i know my friends on the other side with respect to competence low are going to say well look he looks perfectly rational when he's talking to the judge he answers the judge's questions he answers the questions of the parole board with respect to the p s r so what's your problem i know that's one of the arguments they're going to me but i don't think that's true factually if you look at this record mr israel even though he looks competent or not competent you know maybe rational people these talking to he tells all kinds of untruths to those people while he's talking to them and i don't think he means do i think from the record it's clear that he's you know being afflicted by his mental illness so for example he tells the judge he did his high school in chicago that wasn't true he told the probe or that he had been shot that wasn't true he tells all kinds of other things that you can't take the word of someone who has a severe mental illness like this as gospel truth with respect to whether he's being competent or not the lawyer has to do something to try to probe if there is red flags like this serious red flags to try to probe whether mr israel is competent at the time pleaded guilty or not the government instead that mr israel's opening gree did not raise the issue of the argument by me that the failure to grant an evidentiary hearing is there and that i'm not making because i didn't have that you know in my record i couldn't be better but that's not the point i think of the evidence you're hearing problem isn't going to get speck to keep joe johns original question i mean if there's not an expert that's going to say he was insane at the time of the crime or he was incompetent hearing for another trial would begin with an instruction that you've got to do that in order to offer him competent counsel and so i think on remand a lawyer would do that you would go get an expert have a go get mean that's it isn't that kind of flipping the burden so i mean before you get a hearing before anything because i mean everybody could claim to be mentally ill right anybody could claim that if they want to and what would distinguish that somebody just claiming that from somebody who actually is and more specifically someone who actually was there who are incompetent because mental illness is not the equivalent of incompetence and that is the expert testimony so before we ever get to the hearing are we ever get to that there needs to be you know an affidavit perman x bird or a deposition or something and that's what we are missing here so that's why it's to me to send it back to say let's start at mil one developing evidence seems to be the wrong thing to do at this juncture right well let me try to push back this way and say that there is plenty in the record that indicates th mr israel was insane at the time that he committed the crime and incompetence at the time he did the plea bargain and i you know i have used the record as best as i could that we have in front of us to show that you know we have mr israel on twenty milligrams of how all at the time after he was arrested there's voluminous evidence in the record that he has been in a mental institution that he escaped from the mental institution he's had all kinds of  hallucinations that i don't think the government says were true so if the problem is we don't even have enough evidence to get to the evidence or hearing i would resist and i think there's plenty in this record to get you there and this differentiates it from other cases where there's nothing at because it's it's a fishing expedition expedition otherwise me you see where i'm if you're in iran i see your point i and my answer is simply that we have enough here to go forward on that and it's just the fact that we didn't you know mr israel pro se did not get experts to testify to his mental illness before the certificate of ability to appeal ability was granted and so we're left with the record we have and i think the record illustrates that there's plenty here that differentiates it from that kind of case that your honor is talking about where someone is sort of inventing a post hoc rationalization for why they committed a crime and trying to you know go into a fishing expedition what kind i think is what you're best case that in this procedural past you're you're entitled to to go back in and look for evidence i think bush known as like that i don't think there was any kind of hearing  and this court remanded despite the fact that there had been no expert testimony precisely because trial counsel had failed to develop it and i think that's the same claim we're making here i think it's  are cases actually i think profit there was a psychiatric analysis but the other two there wasn't so i think those are the cases i rely on and if those cases you know can't get me there then i  but i can also talk about it right now which is that you know mr israel had schizophrenia there's no question about that in terms of his clinical diagnosis that's in the record on appeal as far as we've got it mr israel says that and there's no question about this that at the time he was arrested he said he was being pursued by a demon and that's why he committed the crime that mr israel is suffers from  o mistrusts would you add a minute or two to jed mr branch i think your honor and may it please the court jonathan bradshaw on behalf of the united states this court should affirm the district court's the nile of hay vs relief because all of mr israel's ineffective assistance claims fail to succeed under the two part test established and strickland this court focused  view that is the easiest way to resolve this case that is where mr israel's claim falls short he has not produced evidence to satisfy his burden under strickland who show on that he was incompetent at the time that he pled guilty on the question of expert testimony this was mr israel's motion his chance to get that evidence and presented to the district court was on the front end it is not enough for him to say i have a severe mental illness and therefore we need to go back to square one at which i can start an investigation and prove that i'm incompetent illnesses create an issue of competence and parroting strickland the court got it exactly right there what the standard was he has to have a reasonable probability of that had a competency evaluation been done he would have been found incompetent to proceed in the government's view this record shows that mr israel was competent to proceed there are a few facts i want to highlight for the court the st is israel's coun rearrangement tells the court that he's competent to proceed and he also evidences his competency so the district court is after he had discussed the factual resume with mr israel you can face a sentence of twenty years and mr israel says can you repeat that and the court says your sentence and be twenty years and he said wait that part right there i i thought my factual resume said i was pleading to a zero to twenty off and it's not i was go twenty years are you saying i'm going to get twenty years and the court then explained to him no it's potentially up to twenty years and they went forward with the police but that sort of interaction shows that mr israel understood the nature of his for seatings and had level in the district court on the twenty to fifty four and there was expert testimony it was four years after the fact but that expert opined that mr boucher on was not potentially not not confident i have not to be clear your honor there is a letter from his psychiatrist in the record post states the the plea the plea agreement here i mean to the police stage in the sentencing stage that says that mr israel suffers from schizophrenia so i'm not disputing that he does not have a mental illness but i don't see credible evidence in the record that casts doubt on his competency and that's that's the key here and another point i to make on that is mr izrael had has suffered numerous prior criminal convictions and not once the government is aware that he's ever been found and competent to proceed in any of those prior proceedings or ever been found not guilty by my question is what do you do about if in fact he really was incompetent and now he's representing so say and he's got to prove his incompetence while he's incompetent is that a bit circular i mean if we're saying you didn't do this right you didn't get your expert you didn't ya ya ya but the reason is and i'm not saying it is but let's say the reason i because i mean you know i don't know if you know anybody who has also i'm sure something that they're now after all who are presenting themselves and so somebody with a mental illness may or may not be able to you know put this together well it's difficult enough to be p se even for you know people that have no mental frailty a couple of responses so that's a st such as want to start with the standard and the standard comes from the supreme court and strickland in the standard makes clear that it is his burden on the question of whether if he could have come up with an expert he attached to his motion some seventy pages of medical records to illustrate to the court that he what was incompetent what's missing from those medical records is a diagnosis of incompetence but i don't want to speculate about what what's not in the record but presumably between h his motion and the evidence he did present if there was additional evidence it seemed like he he could have got ok and i want to ask are there any case is because it seems like counsel or the petitioner is arguing that schizophrenia is somehow the equivalent of inco and i'm very concerned about that because i very much disagree with that i do think it can be but i disagree that it that it is a permanently bad regardless are there any cases that hold that  incompetence period end of story no your honor and so we are actually holds the exact opposite which is mental illness is not per se cop events and so on but that's what i would point the court to to push back on the idea that schizophrenia to be fair i i understand the court's point to the extent you saying it's per se it's certainly not i didn't want to touch on chief judge owens question about the evidence here and hearing mr balcony and said that he was unable to raise the issue of failure to a brief failure to hold an evidentiary hearing because he didn't have a c e o way on that claim this court has made clear in norman's st stevens and other cases that no c e o a independent c e o is required to brief a trial court failure to hold an evidentiary hearing before denying hay vs relief so i don't think that this court was without jurisdiction for someone to entertain that argument just the argument was not in the brief and the government didn't respond to it the because it wasn't raised and i would court back to the valdez case footnote six which just makes clear that the failure to raise that argument in the opening brief does constitute a waiver of the issue and so the government's position is that this court should not remain in this case for an evidence it because we haven't really touched on this there is also this point of the mitigation and i'm not sure that requires quite the same as it is evident here he expert testimony that we've been alluding to with the insanity in the incompetent because they are the question is just trying to convince the judge to give you a lesser sentence and it's a much broader world that you can point to and i do think there is evidence of mental illness here that you could point to but was not pointed to she tried to mitigate the sentence and indeed the sentence was higher than the sentencing guidelines so tell me why that isn't something we should at least revisit if you will your honor the short answer is that was a strategic choice which is virtually unchallengeable under strickland and my my record evidence for why that was strategic starts actually before the sentencing hearing is held mr israel writes a letter to the court on the the lawyer files a notice with the court that says your honor we've met we've discussed the things that were outlined in your order we are ready to proceed with sentencing and at sentencing they mention nothing about the mental health evidence instead the strategy upwardly depart and evidence of the kind that the court is talking about which is mr israel committed these crimes under psychiatric compulsion he has a mental illness that is under controlled or not controlled is inherently double edged and counsel strategically chose not to push that evidence because it would have cut against his strategy of attempting and minimise the conduct the other point i wan make on that is the council's objections to the probation officers recommendation on taking acceptance of responsibility were still alive as they were going into the hearing so recall at the p interview mr israel says you know there's evidence in there he's pointing to the discovery that says i attempted to carjack someone and i don't remember attempting to carjack someone and the probation officer has  lawyer stop so right there and says don't say another word about that and the probation officer then recommends that the district court remove mr israel's acceptance of responsibility and his counsel objects and he does so repeatedly he files three written objections to the p s r on the denial of acceptance and going into the sentencing hearing his st argument right out of the gate is on the objections he says your honor we think we've accepted responsibility my client should get credit for that and if mr israel had then turned around and started arguing i also had these mental illnesses that changed the way i act then judge mcbride may have found another reason to deny acceptance of at that point but because the objection was still live i think this record shows that councils choices on that point were str i guess i can understand on the said his responsibility point let's just assume that argue endo but once that's over rule why wouldn't he go back and say just in general discussion of like when they say a looking at seven children and they all are crying that he's going to be gone for ten years i mean there's all kinds of things that are said in mitigation that aren't like as a matter of law required to be accepted by the court but are considered in the broad sphere of somebodies life and so when you look at someone and they're just evil they're just running around committing robberies because they're evil that is different from someone who's doing it because they have mental illness so why wouldn't  i don't understand the strategy what you're just talking in general about mitigating the sentence not about the sense in god mind that is minute gating the sentence short as i understand what mr izrael wanted his counsel to argue at sentencing was i have mental illness is sometimes uncontrolled and because of that mental illness i commit crimes and if he had argued that then the district court could have looked at the three thousand five hundred and fifty three factors and said that's actually a reason to impose a longer sentence because we need to protect the public from someone who if they're under medicaid sort does not control his illness and as a result goes out and commits crimes and that would have also turned the spotlight back on to mr israel's criminal history which is lengthy and council's strategy was to turn the spotlight away from it it's a long time in the past he's not a criminal anymore he's been on the straight and narrow i from headlong into he's also got a lifelong mental illness that causes him to be abusive to his wife and commit crimes and it's under control so i get i think this is sure t j strickland doesn't demand counsel to be perfect and it also encourages this quarter instructs this court to eliminate the distorting effect of hindsight we know that mr izrael got a statutory maximum sentence but counsel didn't know that at the time he was preparing for the sentencing and getting ready to make these arguments and so once the record shows a strategy as long as it's not per se under an reasonable under strickland then strickland demands that we give that's counsel's performance  credit essentially that's covered all of the points i wanted to make to the court today if there are any further questions i'll be happy to answer them if you hearing on i'll be glad to see the balance of my time back to the court thank you true i think my only point there is that schizophrenia can be can cause incompetence and i think what i was trying to argue in the and maybe i misspoke was that the government's argument that schizophrenia doesn't fall into section seventeen for mental illness is incorrect i mean that's what this court held in the long case that schizophrenia can require a jury instruction but respect insanity that's all i'm saying i'm not saying that there's any per se rule with respect to somebody do with the bags but i appreciate that because i do i just think that you know that it should just be very clear that schizophrenia can be and often is controlled and is not the same thing as incompetence but anyway i mean what do you do with the fact that even if it could create insanity in mr x that in the case of mr israel he clearly was aware that what he was doing was wrong because he's changing his hair and his looks and he trying to hide it telling the bank person to open the volga or whatever give him the money or and then he's trying to carjack when he's being chased and so i mean all of that with the gestes fully aware of the fact that what he's doing is illegal and that's really all that needs to be shown to overcome the insanity so actually i disagree with their you're wrong respectfully but let me try to explain why this i think it's miller v drippy that even those kind of post crimes sort of maneuvers do not necessarily mean that you don't get an insanity charge at your trial that's the case where this person was a nine hundred and eleven sort of conspiracy theorist and he sent some kind of white powder to test the government on whether he was properly controlling the mail or something like that and one of the arguments the government made in opposition to his arguments was look he clearly knew what he was doing was wrong he did all these things to this of the catcher afterwards and it when they finally caught him he said i'm surprised took you so long and the court said no that doesn't necessarily mean that he doesn't get an insanity defense with respect to what he was doing he could still not understand the major consequences of what he was doing even though he trying to take steps to protect himself from the ways it is or any thing in the back of these crimes that suggests he didn't know what was going on until the point about saying damon told him to do it or whatever but just the way he's conducting this i mean when you're having to threaten someone i'm not having to threaten you to get you to answer my question i'm not saying i'm going to shoot you if you don't answer my question so it w think that i'm doing something illegal whereas when i have to or someone to do something that hince to suggest that you know there's a problem with you to directly answer a question your honor no in that sense you know i don't think there's anything in the course of how exactly he's doing the crime but you're right there's the demon situation there's the fact that he told the police or a the hospital people that you've been shot which wasn't true all kinds of indications on the day arrest that he was acting in a completely irrational a manner that is inconsistent irrationality because one could argue it's irrational to commit any crime but it's whether he knew what he was doing was wrong  you know the law not whether this was a good idea was a lot of criminal bets that did not look like a very good idea so that isn't the question as well i mean simply saying after the fact last thirty seconds to talk about sentencing which i haven't gotten to address and i think it's you know my friend on the other side says that this is a double edged sword i think judge haynes you are right on the point there which is that by the time of the sentencing hearing it's no longer double edged there's no double nd that the judge has already indicated on the record he's going to go both of the sentencing guidelines and he's rejected or the parole office has rejected the sentence responsibility so at that point counsel has an obligation to raise that defense because it's the only thing left and that is what this course and we know whether in the conference that judgment bride ordered after mr israel wrote the letter about my attorney won't listen to me whether they agreed let's not get into now how history israel in a position to say that at that conference i told him to bring up the mental health and he did it well i think that's what he says in his two thousand two hundred and fifty five motion affectively but there's no like affidavit that says  submission thank you very much