after this court's order and in homes number two the case went back to the district court where briefing the current discussing what was the appropriate action to take and the district court agreed with the parties that the case should be state pending evidence of competency in two thousand and twelve through two thousand and thirteen the united states supreme court decided the case of ryan versus going solace in gonzales the supreme court addressed a limited issue whether or not haiti is but to mitigating claims under the n i terrorism effective death penalty act are entitled to a stay under either thirty five ninety nine right to counsel or under forty to fifty one competency to stand trial are entitled to an indefinite stay of the proceedings in finding that they are not entitled to an indefinite stay the supreme court very specifically limited the application of gonzales to those cases in which one an indefinite state was considered and to the claims before the court in gave us were bound by the restrictions of the and i were position that a prerequisite to the application of the ryan against consolidates rule is an actual finding of complication into that which i also will be asking the state to address the supreme court as i read the can solve this case was concerned about a case that just got left in limbo that was never lifted to conclusion they felt that the state deserved an answer and so forth what they did not consider because they didn't need to was how that actually gets implemented in practice and i'm particularly concerned with the idea that an incompetent client how to put this you know that the lawyer is just off there litigating this case with no client with compet and so i don't think the supreme court looked into how it's concern about day in court for the state intersected with rules of professional conduct and i wonder if you imagine perhaps one outcome of such a hearing suppose  guardian i think that is one possibility i think however that depends on the nature of the underlying claim as this court recognized in latin burke that there is a legitimate issue of prosecutorial misconduct and is in this case well that that's kind of the ne issue though is don't we need to we need to decide whether whether it was abuse of discretion for the just record to lift the stay here and if so what to do about it and if there's some question about holmes as confidence i'm concerned about you know creating a system where the lawyers are just off there litigating things without a client absolutely in fact we have a very situation in this case  in document one thousand mr holmes filed across a pleading asking this court to order us to not raise the issue of his mental retardation under ekins versus virginia so we actually have that exact type of dilemma in this case where we as the counsel for mr home see a legitimate issue to be addressed in his hey these proceedings we now have a direct order from our client addressed to this court not to us but addressed to this core telling us to drop a legitimate claim while at the same time asking us to put forward a claim know what do you want what do you want to do what i do want us to joe i believe that this core has the authority even under gonzalez tell me what do you water that this case should be returned to the district court until such times as mr holmes is restored to competency or what what makes anyone think that he's ever going to be restored to competence he may very well not be what does that mean the stay last for the rest of his life this case is exactly like resources a suggesting the right thing to send it back to the district court for a hearing on whether he is today in two thousand and sixteen competent enough to be a client competent enough to twenty sixteen maybe there are treatment methodology is available now that would address schizophrenia or whatever else is wrong with holmes and i certainly don't know because there's no record whether his condition has a deteriorated be stayed the same or c actually improved a bit since two thousand and ten i feel that there's just no record on that and so if the court decides that he is as is and competent as we thought he was before then it seems to me ryan requires the appointment of a guardian so that we don't have this lifelong stay that judge posner was talking and i think that that would be appropriate in many types of cases and that could i not happen in this case what is wrong with it here i think the dilemma that we face in this case is let's meet with we go back to the district court we have a new evaluation we have a determination if he's restorable then the case proceeds on the merits and that's fine there would be no conflict with consults however if he's not going to be restorable then the dilemma comes up that he has a right to litigate the merits of several of his claims and those claims require mr ho himself well but if he is gone i mean then this is what we do anyway i mean appointing guardians for people who are no longer able to speak for themselves whether because of age because of you know trauma because of whatever else it may be genetic problems we appoint guardians and we do the best we can in that instance i think i think that's what the supreme court told us today what about if you have someone who because he's crazy he has effectively a mental age child and i think again that's appropriate for a guardian well then why isn't it appropriate in this case to the dilemma that i see i was approaching with a problem is that the guardian does not know the answers to questions that are true with a ten year old it is true and if competency at that level prevents the proceedings to go forward fairly then the proceedings are state that's not the way it's done though the way it's done is you do the best you can with the evidence that you can get we can agree with you for the sake of argument that there may be some things inside mr holmes his head or his memory that if he's truly completely incompetent because of mental illness we're just never going to know but the law deals with that i mean you deal with it you use the best evidence you can you have burdens of proof that are relevant and you just have to accept the fact that the evidentiary record isn't as rich as you hoped it would be so i don't see why this case is all that different from the ten year old or from the person with a mental age of five or  whatever we just do the best we can and a group that is the normal avenue i am looking forward down the line with this case that when we get to that point of simply being i've been able to answer factual predicate questions that are critical to the review of this yes the transcript in the all recordings exist but the issues of prosecutorial misconduct and ineffective assistance of counsel are issues that are directly affected by mr holmes his ability to communicate to us information that he knows like well well in the issue of for example in the in effect of assistance of counsel the failure to develop mitigating evidence the first source for mitigating evidence is the client and we need to be able to identify who to talk to who to interview what did he tell his lawyers to present to played right what is a guardian in line they do i would assume that the guardian would it would tell us to do what we believe to be the best interest of the case that it's oh i think an appointment of a guardian actually is not directly necessary because we would be acting as the guardian well but you can't i mean you know lawyers need clients we don't like a system where lawyers are just off their litigating on their own steam you know in fact i did i would give you the example of this case  were very generous with the expansion certificate of appeal ability that there are quite a number of points that you've raised that i think could have been culled out without too much loss for your for your position in fact it might  just sort of atmospherically strengthen things and a guardian could say you know don't pursue this and do pursue that you know i recognize that the that there hurdles are just too high about how many jury instructions you proposed or something like that which does strike me as something within the trial court's discretion so so there's there's an interaction between client and lawyer and mr holmes may not be capable of rational interaction and i might also add quite a few people who have guardians ad litum appointed for them are very cross about that fact they don't think that they deserved one and sometimes it's because they're elderly or whatever but that's ultimately illnesses that is the pleadings before this court is pro se filings and there's other litigation and demonstrated his mental illness is front and center and everything that he does can i ask you two questions i mean a detour for just a minute so that we don't so i don't forget to ask you  the first question that i'm interested in is where in the record do you get this tended to split on the part of the trial jury we have looked and looked and cannot find a place prior to the sentencing proceeding before judge mts the judge the defense attorney arnold barrett's proffer to the court they do interviews with the jurors demonstrated that the jury was ten to two and is there is did that get recorded in some documents problem dismissing an appeal of whether it's for want of prosecution or want of jurisdiction or whatever the proper thing is that can you review for me very quickly what that is about how what that thing on the district court yes so the zero six case number before to apply retroactively the wrong decision mr holmes returned a state court and filed a successor state post conviction petition under that retroactivity application in the indiana supreme court denied him leave to file we then filed a second time petition with the district court raising just that issue but you have to come to this court if you're going to file a second but if it is a successor petition we do need seek to leave this court to file but under martina's the way our supreme court determine that there is an entity known as a second in time first petition that i know i don't know is micheline over so that was the avenue that we pursued the district court dismissed that petition and we independently appealed that case that's the zero six case those cases were consolidated in homes we're both judgments of the district court in but each of those separate cases was vacated when we return to the district court there were two tracks of the a v s litigation the first initial petition was in one case number the second petition was in a second case now the attorney general's filed a motion to lift this court stay only in the first k v s petition not in the second case so that case remains with the district court because the district court has not lifted i apologise for that your first argument second argument third argument was ridiculous rather than tell the reader now where you talk about it would be at the at the beginning of the second argument where we address the issue in the reply additionally even if the court would interpret that to be procedural at the fall the district court never considered the impact of fourteeners vs right intrade be no versus taylor on the issue of ineffective assistance of post conviction counsel for failure to properly litigate these claims yet you've raised those two cases frequently and i'm not in this state argues that you didn't probably even properly present that point you know the effect of is that when when i guess i'll put it this way when did the state courts have an opportunity to consider whether post conviction counsel was competent there is no avenue in indiana court to raise the issue of ineffective assistance of post conviction counsel so there is no it doesn't have an absolute prohibition against raising ineffectiveness of counsel at a later stage you know saving it safer post conviction and i'm just talking about regionally but as i the case with federal courts as is the case of lots of other states it's usually impossible to do so until a post conviction state because you don't have a record correct and the end is exactly the same as the federal court you may raise an issue of ineffective assistance on direct appeal but if that issue needs evidence outside of the record reserve if you're twenty two fifty five and the same thing in indiana you reserve it for your post conviction proceedings because discretion to not mind that limited ability in the district court to grant the stay yes but you know turn it or you could remain and it's the district court to have that evaluation done by the district court view the the way that it is proceeding in there are two district courts that are proceeding in this fashion and they are proceeding under the idea that if in fact the defendant is incompetent and there is no chance of restore ability then it is a waste of strength well away more in conformity with what the supreme court has said and forward and in some ways something more straightforward anyway why isn't it just to take this a step at a time after the hearing for ryan versus as purposes if the finding is made that he's a incompetent and b non restorable go ahead appoint the guardian to litigate the heaviest petition that could have some impact but that the record doesn't go up in smoke i mean if there's a finding of incompetence and lack of restore ability should there ever be an execution date set then surely that evidence port's right over to to the ford hearing and that is certainly a viable admission to other evidence or a state may wish to enter it is you're not saying that would be it and that is very that is in fact you are if you look at ford which requires there to be an execution date that would make sense i think the logic of the district courts that have gone to the fourth hearing is to to not waste the time of litigating all of those other issues just to get to the point of issuing the ford state i don't i don't know if that's the appropriate way to proceed quite frankly i agree that there is a real problem with litigating forward without an execution date since only two district courts as far as i can tell of done what you're asking and ford itself is judge lot was suggesting seems to be triggered by the execution warrant we would be able to go at the conclusion of the litigation and then raise for the first time the issue under four but actually go back to your treatment of the issue procedure in the fall so in your second argument you have two pages procedural default you start to talk about judge and but you never say why the government is wrong to think that the issue of judge employees was procedur was that the post conviction court have the evidentiary hearing on the issue of prosecutorial misconduct and made the finding that the reason for the removal and the litigation about where the case was going to be tried was designed to remove judge m p s from the case i can't figure out why that matters because judge m p s handled the case and there's no sign that i can see in the record that she was angry at the prosecutor she gave the prosecutor ridiculous sway actually and i don't see any sign that she was biased against anybody else she did over the trial why didn't this just all disappear is a relevant issue when whatever efforts they were making  whom the prosecutor said he cries in every case no those really a trial lawyer sure but you but but you this is one of your arguments right correct  what impact any one issue has i'm on the jury and this court is stuck with the idea of trying to disturb with whether or not there was prejudice to mr holmes by the conduct or the misconduct of the prosecutor and that requires to evaluate under the berger standard whether or not the prosecutors overstepped the bounds of valid advocacy to the point of arguing issues that were designed to prejudice the jury without regard to the facts or issues before have execution figures in this case if he's crazy can't be x can't execute same your honor certainly if he is found incompetent and under right if you're insane you can need to resolve behaviors proceedings oh no actually first we need to answer the question the judge posner is asking you because the trial judge took one look the district court judge took one look at ryan against and solace and said oh a permanent stage you're no good and slap the two thousand and five decision back into place without ever making a single inquiry  incompetent as we say concluded he was in two thousand and ten then the practical question the judge posner is raising with you is inevitable and you know we're not running the state of indiana as litigation policy but i might add i believe mr holmes is the only person left on death row under the old regime the new indiana followed the senator i should be able to speak to that and i apologize i cannot today i  that the ryan opinion turns on whether somebody is either permanently incompetent and unable to be restored at least as far as human knowledge goes at the moment or whether that person is not and i would be shocked in any other current context to rely on information that was collected before two thousand and ten if i'm being asked to decide about a your question judge as being what is the ultimate outcome if he is not sufficiently cop to it and of course that outcome is not going to be that he's going to be executed he can't be under federal law we think and we gonzales as looking at the disposition of the claim to raise on federal he views review as being distinct from the ultimate question of whether he is eligible for execution based on his competence or straight said what i did only options and we have no idea on this record which one describes mr holes and your honor in response to that again our reading of them solace is that that is one that if this is a record based fixed k b s petition which is in every way this is there is nothing here that would warrant expansion of the record under the federal statutory provisions and there's been a full and complete record made on these his claims and there is nothing that would tell you just about i think of your argument is that lawyers litigate without a client and i can't accept that you you think that once you know in the depths of time somebody had a lawyer that it's no longer that the indiana rules of professional conduct don't apply anymore and that the supreme court was not talking about that in writing they had no occasion to consider as a practical matter how their guidance needed to be common to mr benson that in this circumstance when this is been a fully developed record the claims have been developed the claims have been litigated in fact the district court has even adjudicated the claims that in this instance as counsel for the definition and in any reasonable and patient a request for an indefinite stay i think that when you're talking about whether someone's restorable i don't even think that that's probably a question that qualified professional people can even answer that's to hijack an email got entirely there was a time that you couldn't do anything with schizophrenia and then they figured out that for a lot of people lithium you know would help and there are countless mental disorders that were once thought to be in corrigible that are now brought under very effective control by different medications whether holmes happens to have one of them and whether those things exist in tw nobody know it was because there's no record but that you can't tell me that over the course of say beginning with the beginning of the twentieth century up until now the mental disorder after mental disorder has become better understood and has become addressable well i'm not saying that someone can't offer an opinion that someone might be restorable but it's speculation even from a professional know him so i disagree with you if it used to be speculation when he is restored and restorable become something that was actually a correct speculate i don't see that true as being true at all because of the medical profession could say when somebody has x condition here's the medication i real consolidates by saying ok appointed guardian now we have a client for the lawyer they can decide which claims to drop which ones should go forward with how to litigate it and the hey this case gets litigated and either he wins maybe it's found that you know it was a problem that no one ever heard about vance's criminality maybe it's a problem  you know with the ineffectiveness of counsel in some other way maybe there's a prosecutorial problem or maybe the state wins and the state says this trial was within the boundaries that ed code requires and you move on and you issue an execution warrant and then there's the fourt hearing so i don't know what the outcome would be but it would certainly be litigated but pursuing claims of dropping claims that's what lawyers do and it doesn't have anything to do with facts and the factual record has to do with strategy i was like yes time we had a medical examiner your honor it was as far as i know the ones that were conducted with this court we mandate for that to be done so that the district court could make a second the question of restore ability as long as all we have is some kind of a consensus or maybe we have a split opinion about whether he's restorable how many times have periodic lee is the state required to  and everybody that's the that's and i don't understand i understand the state to be disputing whether he's even sufficiently mentally ill to be called incompetent i just don't we because he could distinguish between people and the spirits that he saw a cell that was extremely strange and it and there's no argument precious but that that issues really not before us at this point and our position is simply that these these concerns about his competency are things that need to be brought before the state court and mr banta acts as if there is no recourse in the state courts there is recourse in the state courts with these kinds of determinations if he filed a petition alleging that he was incompetent to be executed he would ask for authorization to proceedings that's good but what we have before us is can take these corpus petition and the question is how to move forward with that it's been on hold until the district court thought that ryan required her to lift the stay and we need to decide whether that was the appropriate action what's the record that it was based on and at some point we will look at the merits of some of these claims that he's raised and i'll tell you right up front you want to talk about that for a minute the one that bothers me perhaps the most is counsel's failure to prevent evidence of vance's criminal history and his violent nature this was evidence that was not before a judge and she didn't know she was the decision maker on the sentence and so a lot of the points that holme raised on the merits are are difficult ones to raise because they relate to the jury and its recommendations in a system in indiana to the time where the age of the judge could completely ignore whatever the jury had to say  so that's questionable that she didn't know about the fans and your honor that's that's not actually she didn't know about answers criminal history the evidence that they want his criminal history is violent nature  s not before her counsel at post conviction testified that it was just never looked into these police records other other things that would have been very easy to find he's a juvenile  offenses attempted armed robbery is violent assault on his girlfriend his criminal history your honor was your relative it was not irrelevant because for the death penalty it was important to make a comparison and you can't make a comparison with only one data point in front of you you need to i'm also on persuaded thinking of the standard whether this evidence might have presented holmes as somebody who needed to be imprisoned for life not somebody it's where can you point to me in the trial record that the trial judge knew the things about vance that i've just ticked off mr they are not there have been separately tried it doesn't matter it's not there in the record it's not brought before the judge in this context if you're thinking maybe she had a recollection from vance's trial i don't think what she wasn't even the judge advances trial was she no no ok so this is not a situation you know where you like this giant drug conspiracies and the judge remembers everything the trot the trial attorney testified in the post conviction that you did not look into this it wasn't even investigated and so your honor to the extent that the record reflects any or several of those things up that's his claim of ineffective assistance of counsel it's been adjudicated and what we have to do now is determine whether that was a reasonable application of glued persepolis federal law i'm not sure what the interaction is between mr holmes being found competent or not at this stage i am not talking about that right now i am jumping ahead to one of the merits points on the hades petition that was raised which we have not yet had occasion to consider in this court because we have found that mr holmes was incompetent but now it's before us and i'm telling you that to say that evidence of sansa is criminality is irrelevant i absurd and it's the kind of thing that would potentially tip of judge or of or whoever's the responsible entity toward or away from a death penalty there are i guess my response to that would be that on this record and on the evidence of holmes guilt and the theory that was presented and supported by the evidence of holmes guilt but that would not have caused a reasonable probability of a different outcome of this trial error that is not what strickland requires the supreme court has said over and over again that it's not a more probable than not that instead it is something that undermines one's confidence in the outcome a reasonable probability you're right or wrong and i might lower prosecutor was an outrage actually and not just not the crime part but the you know african americans beating each other and the other comments that are are highly objectionable you know out of that what i want to point out to the court is the distinction between what was procedurally defaulted and what was adjudicated has to do with anything that occurred before the penalty phase was not part resulted from that over the fight over getting victim impact evidence and which was a photograph of teresa blossom with her child which the state purported right to all times is so aggravated at the prosecutor that she winds up screaming at the top of her lungs a i know the supreme court used some language to that effect but we still have an adversarial system i thought and so the idea that interpretations of a record in fact you rely very heavily on the fact that interpretations of a record might vary in so far as you say well if there's anything even somewhere in the ballpark at that requires us to defer to that we understand that we've been told that in the in times in the last twenty years but it does  that records can be interpreted in a number of ways and that perhaps the defendant's understanding of it might be helpful for counsel it doesn't mean you're changing the record it just means you're understanding it better think i want to move on to a couple of points if it's so posing we rejected the appeal what would be the next step what happens what would happen then well i i execution warrant outstanding at this point no it stayed in pending if this court were to affirm the district court the another date would be set and at that point then he would be free to challenge i just want to point out that on the court's questions about the ten to two deadlock i did there was nowhere in the state court findings or opinions that i find that that was a fact doesn't seem to have a problem with well i mean as you're on the nose often courts will adjudicate a claim assuming for the sake of argument certain facts well it is not even knew that it was contested that could have been added to the  conviction here and there could have been testimony from the lawyer who told the jury there could have been apt david's from the original jurors you know when when you don't challenge a fact sometimes it simply becomes accepted as one of the facts perceiving docket it did dismiss the pit fish and it found that the petition was an unauthorized access a petition we agree with that we briefed it before this court before the motions to consolidate and we stand by the arguments in that brief if it i not authorized success of petition and in addition it raises only a question of state law there was no retroactivity of anything that was involved in the sale or decision which is what mister holmes attempts to rely upon now rather after the statute was amended what the indian supreme court has done is consider cases on their merits when there's been a sense of death imposed where there was an a recommendation other than for death but in cases where there was no recommendation at all sailors in napa said so they've not been granting relief but that's a question of state law because what they're doing is applying the sentence review under the indiana constitution it's something that is done in every case in indiana criminal cases under appellate rule seventy where they apply their constitutional obligation to review and revise sentences and so there is no federal question raised in that appeal or or in that successive petition that was not authorized to be filed in the district court this martin help me if you can with this p if there is a position taken by the school that there may have been an abuse of discretion in the limited area  state by the district court could a district court filing long lines of chief judge woods concerns as i see them about ability of quote the friend an in a district court you know your honor and the reason why and i think that the the district court cases that are sided by mr holmes in support of that suggestion that the kind of evidence why go you know the normal comedy and deference and basically respect for the separate jurisdictions no longer obtains that's absurd he's about to be executed which is the service of a sentence has been imposed by the state after he's been found guilty of this crime everything about the tears of hades review attended that in the state court has the right to decide in the first instance whether he is there wouldn't be a great deal of prejudice to the state bill in that case we do i mean i actually i understand the need to address the merits here and i respect your position on  can't get witnesses it's not that people's memories are going to fade you can keep raising this forever as far as you're concerned finality is a value in and of itself your honor and i can only speak from working in a number of capital cases this man committed these crimes as found by the state of indiana twenty six years ago there are family members of the victims of this case that are waiting for justice and i am not trying to urge this court that mr holmes writes and his and in his care under the system as as federal law requires is unimportant compared to this right but the state of indiana is the first and foremost custodian of those obligations to see that that finality is done so that that's one of them and i think to the other thing that i would want to add about that point is simply that competency as would regard being able to pursue federal pay views which we believe doesn't exist africans are less it only in the rare circumstances where that  district court have discretion to order a stay under the similar circumstances these circumstance i'm sorry you're on when do you expect him to be x if this court were to affirm the denial of k b s relief i'm sorry i there are other lawyers from my office that are better possessed of these kinds of administrative facts but i think that within i would say three months there would be a new execution date set at that time mr holmes would five this petition for authorization to litigate his claim that he's not competent honor the other the other answer to that question could be just to move more swiftly and with more find out a bit but your honest questions well taken i just am not in a capacity to answer that in this at the trial it was at the trial that dr davis testified as to the degree of culpability of mr holmes without that information what did the defense counsel do when he spoke in closing argument about the violent history of mr but what of the base that on the day he was certainly not basing that on the evidence in the record i don't know where that came from either of you both general a spoke generally as to that what's critical however to the issue of ineffectiveness was that when dr davis was given that information about michael vance he testified to post conviction that he changed his opinion that michael vance in fact was the leader of this enterprise was in fact the dominant figure in this enterprise and that therefore that would have changed testimony to the do to the jury and to the trial judge as to michael vance's relative culpability and when the post conviction court refused to consider that under lock in eddings that's the at the moment by what happened the van vance received a life sentence after being found to be the principal offender of the murder of charles oren he was sentenced to life thank you thank you very much and you were appointed were you not by our court we appreciate your assistance to the court and to your client of course