arguments austin versus as i intend to spend the majority of my time in our lives given to addressing the issues surrounding mental illness which are at the core of not all but so much of the issues here and in doing the number of different issues of deference and default to be dealt with and also taking away from the united states supreme court spoke in avoiding discussions of twenty to fifty four day and a one if it were possible in terms of the more information of the type that the drug court made clear should cause a court to reopen its inquiry into the issue of co like the united states supreme court in drop this court may not need to reach the issue of the sufficiency of the pretrial procedure adopted by the court because what happened that trial at the end of th when things get to the fore saying oh no no i didn't mean that and then saying yes i do mean it then no i don't that that's actually kept him without an execution date or one that was cancelled and otherwise no execution date for fifteen someone years judge he was sitting in the t t c judge doing forty or fifty years without any sort of a death penalty at all when he wrote a letter to the detective saying i will confess to this murder if you guarantee me that i will be prosecuted for first degree murder and you guarantee me i will get the death penalty this isn't the case of someone who's been caught gone through trial struggled to avoid a death sentence th nt to wasc this court to say that every defendant who wants to get the death penalty or wants to waive mitigation or wants to hasten their execution having already been sentenced is there for necessarily incompetent that's not an argument just as the united states supreme court said in both paid and drug we need to look at the aggregate of circumstances suggesting incompetence and particularly because i was in segregation and he didn't like being in segregation so there again one could make the argument that was quite savvy to get him out of segregation and once he was as segregation in the segregation and in the jail in the prison he wasn't unhappy anymore i mean it's not bad and reasonable to be just feeling like you can't live another fifty years in isolation in a prison cell and if that's where we w the elephant in the room is is this guy trying to help you know do you give deference to the state court then you do kind of have to show almost as a matter of law that someone in this scenario is incompetent if we don't give any differences they can we start over again then you may have a point but i'm just saying if we give some deference to the state court finding a competence implicit or otherwise that alters the calculus of it for you well most admission doesn't you're on it even if this court w to grant deference to the implied finding of competence for twenty to fifty four day purposes for the substantial of competency climb and that was the issue the court asked us to address an additional briefing that doesn't speak to the issue of whether deference should be granted to due process kline which is what the pipe climate is i proceed you will due process climb a climb that was never presented to the that all to what is the fact question that specifically raised for the federal district court that it let's assume the federal district court created everything that your expert said except the legal conclusions whether this constitutes incompetency to represent himself and plead guilty and stand trial what is what what is that that question other than that legal conclusion drawn from the facts for the substandard competency question  evidence but it's historical contemporaneous with trial and the expert reports offered by the defense clearly demonstrate mr austin's incompetence i understand that that i don't understand how the legal conclusion is that if the district court a federal district court said ok even he even if they're correct about these diagnoses i grew everything i say except that when you match that evidence against what the standard for comp y is he doesn't get there with a minder standing in the federal district court ruling that's not what the fish for federal district court did the federal district court in fact doesn't discuss our affirmative evidence of incompeten that can we conclude where the district court concluded all we conclude it doesn't get you to the legal definition of incompetency i feel as if i'm not understanding the question judge because what is it about  impaired his capacity to make a rational decision in relation to his cell four percent asian his plea of guilty etc in the course of the trial i mean you have a little bit of a problem because all of these experts are post hoc and so those diagnoses by itself as we've discussed before don't necessarily get your over the finish line i mean there have been people there was a justice on the austin court of appeals who committed suicide i'm sure the week before two weeks before he was he cases and no one suggested those cases should all be set aside because he was incompetent people have depression and function and become lawyers frankly judges all kinds of people have depression so those diagnoses by themselves don't tell us anything i think that's the point of judge alex question or at least point to my question so how do we take that and say be in those diagnoses at the time of trial therefore overwhelm to that period but the second thing i would say is bit i would be the first to concede how difficult it is to investigate and prove incompetence in another part time setting coming our system sets up the procedural due process standard that it does with as a doubt the court has an obligation to conduct a full inquiry at that time when a full inquiry can be conducted and  why the united states supreme court in both public and drop said we're not six years later going to have another proton hearing because it's it's too hard to have a reliable hearing what in this case gave the did gave the trial court a doubt better now and he would have been depressed but he was better and the truck would have the option to deserve him and he was in extensive course beyond ins with the trial court and making the normal types of requests that you would do about his clothing  say this is not a situation where some of these very unfortunate situations are where the person is seeing ghosts or us phones or whatever this is not that kind of  the mental health professionals have relied on a pine's to point out that they were they floridly psychotic cases where it's going to be pretty obvious to everyone but there are impairments like mr austin's which here where it's not going to be as obvious what this court referred to and run by as volitional and payments affecting the rationality of the decision making even though the person can be somewhat functional and has a logical understanding but in this case to answer your question  this case the cope was faced with a man who was saying i'm very depressed i'm suicidal and i kill myself before trial and i want to wife counsel and have myself kill undertake some sort of a procedure has dr brown see him for about twenty minutes as i understand it dr brown isn't aware all of these letters talking about depression never addresses with mr austin the news reporter is interview well what about these letters and what about the depression and your suicidal feelings is that what is this all about you being depressed and suicidal mentally ill suicidal or is this about you being someone who's made a wholly rational decision to kill themselves and also happens to be a bit depressed that didn't happen in the brown report it didn't happen in the colloquy mr austin take it up a call and said i have no history of mental illness i had no problems with mental illness in the army and the matter went forward they get to trial and a trial the judge name he is he has an extensive psychiatric history dating back to childhood including multiple suicide attempts and severe depression he's described in the paper work as a very disturbed individual he describe himself as having this psychiatric and counseling history and what the court hears then not only increases the amount of information about i prior psychiatric history that should have caused additional concern uncommon i gree your honor and that's not what i'm saying but it eased extremely relevant in a pite scenario i thinking about the death that's raised to have conducted some sort of an inquiry and been satisfied that there is no mental illness therefore i don't have to worry about the fact he's trying to i know if the court necessarily was convinced that he had no mental illness i think you're conflating again confidence in mental illness the court doesn't have to be can convince that he has no is nothing about the fact that he was able to engage in goal directed behavior with multiple steps even if some of them show some complexity that is in no way inconsistent with his depressive illness and his frontal lobe syndrome having substantially impaired the rationality of his decision of whether to get himself killed or to proceed more regularly with a trial and there's the mental hoard of i disagree with this decision where then that it's irrational but i wan you a separate point which is in addition to finding out this about his background the court also got to observe it and here he is the main concern he seems to have is that he will be characterized as a pedophile for his relationship with a teenager that in his view and his perspective quote looked older in other words look don't have to get into a bar and all of that and so he was very offended by the label of pet of file which is very rational and less offended if you will because he didn't you himself that way less offended if you will by what he did actually do which was you know murder d k a nine year old so isn't that rat rational in a sense that again i'm not in any way finding it appropriate to have sex with a fourteen year old when you're an adult but his concept that he's not a pedophile when he does that with a quote girl that looks older doesn't seem whol irrational that someone would not want to be labeled a pedophile and judge when you when you're talking about a russian melody there what that speaks to them a is someone who's got i thought disorder whose thoughts  logical connected why to be irrational in the sense that the phrase is used to describe that person and so they're talking about butterflies in court when the evidence is about pedophilia and he wasn't doing that he's also satisfied based on his extensive examination that in mr austin's case it was and it certainly begs the question and that's all we're talking about with the pay kind is it begs the question it's not you should be satisfied he's cain line of cases that say i'm called witnesses are disfavored and you have to show that these witnesses would have been available to testify do you think that bears upon it least your ineffective assistance of counsel claim on this competency issue that you have to show to a different lands we don't have to prove incompetence it's where the system fell down and that's why we're in this tricky position council undertook no investigation to be no witness have to actually have proof that this witness not just some witness but this witness would have been available to testify at the relevant time so is theirs i didn't see it but i could have missed it so is it in the record that th experts have said it would have been available and would have testified at the at the time of whatever confidence the inquiry there was to this effect well i think i would start one step back from the experts in relation to the deficient performance in the witnesses it starts with the historical records which were clearly inviolable then the contemporaneous witnesses and we have affidavit from his counselor in the harris county jail where he was experiencing all sorts of symptoms of depressive illness et is is there evidence in the record that they were available to testify the time of the state court trial just just answer that without regard to whether there should be such evidence is there such it's it's  something that i've looked at in probably ten years since we put together most of this material so if you look at that caveat from me i can't remember a sentence in any of their affidavit sighing and i would have been a vial of all at the time of trial and would have done that but nor do i believe that that would be required in this case because our time is running short i have two more questions and one of them is returns the question the judge owen asked you about that there was some confusion on at the beginning of oral argument what is it that would have that there needed to be an evidentiary hearing on what is the disputed fact if we look at all the materials that you have submitted what is the disputed fact that you need to tee up testimony with which we just take the whole universe of the facts like those are the facts what is the fact there are three good what you want to ordinarily they might be but the state has joined no issue effect on that and so they said that the statements such as they are which are on sworn don't engage with the fact that so basically these jurors if in fact what they're saying is that they lied at the trial they were under oath when they i presume since everybody's all sworn in for for dire then they lied under oath and they've admitted to perjury and i don't know if anybody's questioned them on that and they didn't say that they lied at the trial they say oh you know i think any guy that kills a nine year old who deserves a death has so what they'll say and i was lying to get on the jury back in two thousand and two or whenever it was so do we have evidence to consider that that would matter here and if we do then do we needed he well you absolutely do not need to produce a confession page or a from those jurors to win alkaline and the statements from the jurors are specific to mr austin's case not a general feeling about the death penalty in mr alston's case there reverse this record we should reverse on this record the state has had an opportunity to present an alternative argument about what those jurors were saying or get statements from the jurors psion all of that what i meant at the time was this and they haven't done that there's only one set of facts advanced and with submitting if you want a ruling then that assuming that we read this and there isn't a contradiction that all of it could be true at the same time that they could have viewpoints about what they did and like anybody say well i really didn't have a choice once i heard the case i was going to do this such and such coming in after the fact doesn't mean that and having certain views about the death penalty in general doesn't mean that you didn't tell the truth when you took an oath to consider mitigation evidence if the court gave it to you those are not in conflict that they have conflict at the margin but you can resolve those they're not actually directly engaged if we were to believe that this was not directly engaged conflict lose not quite to the extent that you just described but i certainly take your point but the statements as i recall them include the the jurors are talking about how they felt at the time of trial not they'll say what anybody have any trouble working a million dollars and hypothetical case and then you know have to jury raises their hand because they're thinking about the facts that they just heard not just any old case where somebody has some terrible event you ordinary people don't make those kinds of distinctions between like what i thought the morning of versus what i thought five days later and it's not clear to me from the statements and maybe you can point me to where they're saying the morning of or die or i lot because i thought th very different topic than jurors being brought in to be asked about a million dollars and i probably haven't thought about before that these are jurors who had strong views about based particular issues of the death penalty and this court has already knocked been put to the side but for the once the we have your honor our submission is that it's very clear that their views are strongly held long held views and that they were held at the time of the jurors or said they were held at the time and that that's how they proceed and if they'd answered correctly advised he it would have been a cause challenge and it's not surprising the jurors with this level of extremity of view made it on to this jury when you look at the  was very limited and where the state had mr austin joining sixty six sixty one consent challenges to remove anyone who might be manhandled assuming there were b i'm going to make a fool of myself if i try to do it off the top of my head if it's not structural err what mitigating evidence was presented to the jury not mr austin represented himself he asked for death he's no evidence was presented he asked for death he told the jury i believe that if he didn't give him death that he would kill a god and so they've been given death and i think that to the extent that anyone talks about this issue of the pedophilia in the fourteen year old girl he had the relationship with he explained that to the jury in terms of his preference for receiving i know intercourse rather than  in he's interview with sergeant allen he second police interview with sergeant allen which was an exhibit a trial and was played to the jury during the guilt during the guilt phase mr austin did describe that he had been in psychiatric counseling since a childhood and that he had suffered from depression a transcript of that was included as one of the exhibits with the petition so it is transcribed and is one of the exhibits we look in some context the supreme court has said that there's got to be a reasonable probability that the outcome would have been different had it can you meet that standard yes your honor and what the supreme court said a reasonable probably constitutional lawyer doesn't allow us to put up an imp an unqualified juror just because one of the parties wants to proceed with an unqualified juror and a juror who is on i will to is your opportunity to help educate us on this i appreciate it and if way the and the court holds that in this situation we would have to show prejudice on the jury issues the court would unquestionably have struck the juror for cause that guard dies you know it doesn't take a whole lot of bias in favor of the death penalty to rule for the death penalty there the jury in the car knew a case two days ago just retained what resulted in a life sentence for someone s murder in the bay i pay to step to god two hundred times just to do two days ago he was sense to life because the juror at least one juror wouldn't vote for death there is no case so bad and they  having heard that he had a psychiatric history in the counseling history and a more favorably disposed jury hearing that and then hearing him big to be killed in that way may well have we scored in explaining why this court should affirm the denial of boston's petition previous i'd like to start as we did previously with austin's competence because that cuts across most of his claims and i'd like to begin by by suggesting what i believe is an efficient way to consider this question and the myriad at issues that are attendant to it and that is essentially to start at the end to ask whether there is a question of austin's competence considering all of his contrary evidence and with no deference to the trial court if the court agrees with us that there is no question there then that question is that and if however if the court thinks that there is a real question as to austin's competence then it needs to step back and ask whether or not that questions want to fact or one of the law if it decides that it's want to fact that it needs to ask for the twenty to fifty for  prevent austins reliance on new evidence in federal court and whether austin has overcome the the presumption of correctness if however the court believes that it's a question of law at the need to go one step further back and asked whether or not he paid claim and  the hearings that were held were inadequate for various reasons you know the when when the trial court proceeded to go to trial without holding a competency hearing it necessarily determined that there was no well then those are two separate issues it seems to me your honor they asked the same question whether or not bonafide doubt exists that requires a hearing and when and they're saying competency that's correct your honor but the paid claim only asks what what was before the trial court it doesn't ask what could have been before the trial court and when and when and what what the supreme court in towns and the same says is that you assume that a state court knows the constitution and applies the constitution correctly and so when when the state court proceeded to trial without a competency hearing it necessarily concluded that none was necessary and that is and  if you consider that a question of law that is an adjudication of that issue of that question but it's actually a question of fact it is this was the very issue in in magic v fulford which in which the supreme court reversed this court and it held that a that determining whether a competency hearing is necessary is a factual conclusion and shortly thereafter this court started applying maggiolo to to that question and so outside evidence is not relevant to it if you can't say well if the trial court had known this because the question is and it is an objective question about what the trial court did know and how the trial court acted on what it knew there was simply no role for outside evidence to court no substantial deference still applies in that case but what is your take on my you know i asked your opposing counsel about day vs quarterman woodfox vs kane about uncalled witnesses what's your view on that well your honor i i would say that i would i would agree with him that there is no evidence that that there were witnesses that that could be called that they have identified no case that is a positive that any of these claims because you didn't really make that argument  no no your honor we didn't i think it is good we didn't because we don't need to get there because the the i the i t c claim has no merit the i t c claim is the de woodfox line of cases relevant only to ineffective assistance or would it apply more generally to a situation where the end called witness would be pivotal to the outcome of the hay vs contention i think that that as far as if you if you were on on hay vs and and you need to show at the end of the day that there was a reasonable problem probability that the outcome would have changed and yes then you would need some evidence that those people would have actually been there to to testify so if the standard for any  to do with the reasonable probability of a different outcome then the day would fox line of cases applies if that's not relevant than that then that line of cases don't apply that you're yesterday's honor ok and what cases that you're on i can't  the i mean the case that i'm that i'm relying on for that is i do apologize or it is it's not my mind but it is it is a it is multiple supreme court cases that say at the end of the day s the question is even if you even if you decided to but the state court applied an unreasonable standard and reach the wrong question you still have to reach that final question which is whether there is a reasonable probability of a different result you know that i'm asking layering because it's our line of cases that is this uncalled witness line of cases how does that get because those tend to come up in ineffective assistance of counsel cases i'm asking do you have a case that divorces it from ineffective assistance and lies it to just stand alone type of claim like like the ones who are here here i do not your honor ok but you think it does apply i think should i think that you cannot reach the final question in a hideous case as to whether there was a reasonable probability of a different result in in the proceeding unless you can show that these people would have been there to say which candidate would do so as doctors just yesterday somebody well it has to be enough to reach a different result it can't just be anything and and and  that brings me your honor at least to the standard of of competency in in this case so the the the supreme court in go dina has explained that the competency to check to stand trial to understand the proceedings and now as this court well knows the the evidence in the trial court was his cogent letters to the district court his lucid interaction with the trial court a witness and the jury and the opinion of his counsel and the opinion of his expert these are the very categories of evidence the supreme court and this court have repeatedly said or the universe of evidence you consider when looking at competency that's observation the opinion of counsel and the opinion of an expert austin has brought evidence of his mental illness but but mental illness is neither necessary nor sufficient to  show competency to stand trial it only matters to the effect that it causes somebody to be unable to understand his or her proceedings and so often also brings dr woods opinion but dr wood retrospective opinion on austin's competence should have no weight because it applies the standard of competency that is untethered from case law if i could give this court just a few examples of what d says he says quote mr olson certainly understood the factual issues of his trial he knew what he was being charged with he understood the potential consequences in fact he was capable of managing impressions and sought to minimize the appearance of mental illness to ensure that his planned death could proceed austin understood his options and he goes on to say austin clearly understood the charges he was facing since he was trying to undermine that very process nonetheless dr wood says it's possible to demonstrate competence and yet still not be competent he says that this may be the case even though the defendant's understanding of his options is not impaired by mental illness this is not the modest standard that code yunus talks of this is the enhanced standard that the ninth circuit applied in goodness and that the court can go down as rejected but what do you make of the fact that even though the court has the opportunity to observe him he's representing himself in all of that  court is suddenly hearing things the judge is hearing things that are inconsistent with what this person just told the judge two days ago that i mean i didn't  i know that will get my attention i'm going to remember something someone told me three years ago in the case but if i just had a pretrial hearing and they said are things great no no mental illness and then wham i'm here and all this stuff about mental illness i will calm up and on the say was going on here your honor austin had previously told the trial judge that he was depressed this was not new to the trial judge and in fact what but the trial judge was seeing was people that's quite a bit different from saying i've been treated the army discharge attempted suicide both to be fair your honor most of those dock most of that evidence was in documents and it's not clear that the trial court had right in front of it and was and was reading directly from there but even with that evidence they could it would say two things number one it would say austin was mentally ill which as we've already discussed does not really mean anything for competency unless it causes an inability to understand the proceedings second it would show and it would it would dugdale with what also had already been doing  making a little subtle or point and maybe it's not a winning point but the point is you now know as a judge you didn't have all the information you thought you had you thought you had everything's cool we don't need a competency hearing this we've got dr brown with these guys never had a problem  good they had a little depression being in segregation who wouldn't and we're good to go now all of a sudden the judges hearing in that interview with the police sergeant or whoever was in trial something different and it's not that far apart in time so we're not about you know this was five years ago and the judge is forgotten so it would seem like the judge then has a duty of inquiry to say hey please square this up for me i thought you said you had no mental illness problem i thought this i thought that but now i'm hearing something different your honor we have cited multiple cases in our brief of the defendants with far worse symptoms and far more obvious mental illness were numerous courts including this one have held that there was no duty on the part of the judge to inquire into incompetence the the the point is whether or not he has the ability to understand he has proceedings and while finding a and extensive his  history of mental illness may update your probability on whether or not he he isn't competent that combined with the observation that the judge had through his letters through the court through the opinion of his counsel through opinion of his expert is simply not enough to open to overcome that the fact that he had mental illness when he had consistently demonstrated the ability to understand his his proceedings if i could  this clear where the gentleman wanted to blow himself up and blow up an airplane the court didn't say that that ultimate choice was rational the court looked to what he did leading up to that choice was was he able  to reason logically to to make a plan and carry it out and that's exactly what austin did in this case and now austin here and has exp hurt his expert if you if you look to dr woods's affidavit his affidavit of pages eight to eleven that's exhibit ninety five to the petition the evidence of austin's irrationality is almost exclusively austins suppression and his desire to die for his crime and now if i could i and tending toward self punitive behavior there is nothing in the evidence which would have caused the district court to conclude the petitioner was mentally incompetent and the ninth circuit in in the bucko case quote evidence that dennis is decision is  direct consequence or product of his suicidal ideation is not meaningful evidence of incompetency and those who are both in it in addition to taylor b horn hunter be our stocks which from the same thing from the third and the eight  it would be enough to get this judge's attention what are you saying would be needed so let's say we have that exact same confidence inquiry that occurred here what would have to happen at trial to raise the red flag that would be enough that if the judge didn't respond the red flag would be enough to sustain a havey as challenge your honor i think i think that that some some evidence i mean the one of one of the examples that we provided in our brief was that if somebody believes that that he is protected by god from earth from earthly punishment and so he can submit to the death penalty and not worry about it then that that is evidence of  rationality if he thinks that he is in that he is in some other dimension in which he will soon return back from you know after this trial that is evidence of irrationality or if you simply i mean th the most basic if he demonstrates that he doesn't know where he is that he doesn't know what's going on that he doesn't know who these people are that is all evidence of inability to understand the proceedings there is none of that here counsel i have two questions you argue window are you asking us and i'm not foreshadowing here or are you asking us to go through all the various steps of whether there should be deference or not your honor would what i am what i am proposing is either a short opinion or a long opinion are there is there is there is a sherman that's the poor that you're proposing there is a short opinion that says we don't need to consider whether or not this is a question of law or work question of fact or whether or not twenty two fifty forty two applies or whether collin applies because no the flow chart that i've made if it's a mixed question you're on a mix question is a question of law and so when i say you put the mix question on the last side you didn't get to give your sought your last little thing on your decision tree that we asked a question we did yes when you said d one and then you were going to know and you didn't tell us the answer for that one sorry your honor if the court says that it is not an adjudication on the merits it still needs to determine whether twenty two fifty forty two bars awesome from offering you evidence in federal court because he was not reasonably diligent in developing that evidence in state court so isn't that a little bit of a catch twenty two hundred i'm not competent so we have not only the competence to plead guilty and stand trial but also the competence to waive counsel and act as his own counsel and so if he was incompetent to do that then his lack of diligence as his own counsel same's to be kind of weird to hold that against him can you resolve that well your honor that's that's an interesting question it's not an argument that austin has made and so i would urge the court not not to reach that question but what i would say is that what williams retailer says about twenty four fifty two e two is that it looks at fault and fault is a different question from competence fault is much more looking at criminal responsibility i guess i think would be the more it causal fault right we didn't do something and therefore this happened well it seems to me he made the filing based on what so the williams retailer says you have to exercise reasonable diligence and so you don't you don't pick any individual proceeding out and asked whether the person exercise reasonable diligence you look at it all and so this court would have to say that it was reasonably incompetence i don't think that's of too much for me i'm sorry your honor that that gets back to judge changes question which is the fault is different from competency the fault question is much more of whether you're going to hold someone responsible and so on it's an it's a different inquiry and it's simply asked whether austin knew what he was doing was right or wrong and in his brief he says i was trying to trick the trial court i mean it is it he didn't he knew what he was doing and what's wrong  cannot escape the fault for that it is in and i would also say it is it flies in the face of the comedy that's owed the state court to do that to say that abe a petitioner can knowingly lie to the trial court don't think if they thought he was incompetent and he couldn't if we have this problem because he's too incompetent to do what he needs to do to protect his rights and it's about his incompetency in that why isn't the standby counsel on on hook for that part of it this is all it all kind of comes comes together that as as as this court held in its in its opinion denying the c o a the stand by counsel's really not responsible for anything or nothing even if they observed it he and and let that happen there's no time be flippant about mental illness by any means in the in the shortness we haven't question asking sean i'm not saying he did any of the sherzai that that call sure your honor the there i'm not trying to to suggest the council would stand by and let that happen and in fact the fact that standby counsel never said anything about his competence to the entire trial is still further evidence that he was not incompetent but at the end of the day that because that demonstrates a counsel believed he was competent he would not stand up and say anything about about his his refusal or his whenever and i make it on a couple of times in the briefing that there was money there examination in furtherance of a mitigation investigation he filed it nearly a year before trial when he was discharged from being austin's counsel there were still six months before trial there was still plenty of time to conduct a mitigation capacity that's that's not that's not my understanding your honor it's what they see very oh my my understanding is that is that they're saying that in fact she made no effort to seek out these these people that all he did was file a  do them on the bottom of it this is not the court's next version they want to make that clear simple as as best i can i can tell your honor this was and an expert who was who was available and identified so the court said this person about the state doesn't get to choose the expert at least incompetency of the executed cases and so i would say that i i did in my brief call him a neutral expert that was a mistake on my part he was and hiring him the court entered an order appointing dr brown as the expert and so does that suddenly make him the court's expert or is he still the defense expert or does it matter if it's the same doctor brown and so i think that's  honor i think i think the court may be reading in a claim that's not here at the the focus on on whether or not austin's counsel sought out the ex or whether it's the lead of their reply that's all i can say right we think that's a big deal and  didn't i didn't mean to suggest that it's not a big deal i don't think it is i think it's a mountain out of a molehill but the first thing that i want to say is that it goes to his high a t c claim not to any thing about whether the expert was proper order well does it or not since if it's one thing for the state to  ask you about the jurors issue but i don't mean to cut off obviously my colleagues but i wanted to ask you about the juror issue kind of getting back to fall obviously a sort of what we call real defense lawyer would have gotten up and then assert super thorough  bordighera in a capital case that would a lasted days and all of that questioning everybody individually and we don't know what that would have yielded and i don't think if he is otherwise competent that mr austin can complain about his failure to do the kind of what i'll call real war dire but that said there were questions asked about being fair and if the jurors lied then we have a problem so how do you square the jurors statements let's assume we consider them the equivalent of sworn statement how do you square those with the answers to the questions that were asked about mitigation and fairness and all that a trial edward r your honor first they are they are description of their of their views as ordinary citizens not as jurors secondly nearly all of them are framed in terms of evidence that they learned after voir dire and so could not have been very let us at least on this on this thing if i could if i could quote your honor consider that part but he said of the city that's correct your honor and my my next point is that none of them said i lied and so without that it's not evidence that they lot of light of why don't we send it back on evidence you hear you put these people on the stand and you can look him in the eye and go are you admitting that you perjured yourself in a court of law in two thousand and two then you can get an answer ok but we don't really have that one way or the other and so do we have enough here to raise a question that would send it back for an evidentiary hearing so you can have that look him in the eye moment there are two two reasons why why the court should not do that the first is that if if you assume that also is competent if you find that he was incompetent maybe you don't even reach this question if you assume that he was competent then than judge the judge owens concern about twenty two fifty forty two does not apply and austin's failure to ask a single question of of the jury demonstrates that he was not reasonably diligent and therefore cannot introduce new evidence in federal court the second question is that  and the so just to go back to that one second austin argues well i don't have any evidence that would have caused me to ask about this but that misses the entire point of why dar the entire point of why dire is to ask questions to get in order to to get past the to this court would have to hold that it was reasonably diligent to not ask a single question of of a jury and i just think that is that is a it's said in response to questions now we can consider then we w will give you we can listen in again if it's a make a decision but we don't know that because he didn't ask any questions only write that he had already answered the question there's no i don't see where that gives you say what he just death to the second time and he would have gotten the information your honor for for example he could have asked how do you feel about somebody who killed a child does that change your view how is it different issue than sitting aside and your honor i do i don't think that it is because it's this exploration of the jurors that things that happen kind of out outside of that where you just it's really hard to to reconstruct things and i and i think that this is this is one of those cases are you saying this should if we don't agree with you on the e to come overcome the the presumption of of correctness in this case and that that requires clear and and convincing evidence and that is not here even if the jurors had said i lied at blah dyer all you would have is one sworn statement saying i'm going to be i'm going to apply the law to the facts and one statement saying i was not going to apply the law to the facts and as this court has said the guy just he didn't in the lives of honest mistake it was a mistake and i sent it back but that was a historical fact your honor those those are the cases in which you have juror bias in which you can show this you you say this person lied about historical fact this person wasn't lying about his state of mind something we can never really know that it's a calving image you're hearing wouldn't tell a funny thing you know it say well i really meant such and such on that day back then and i meant this two weeks later and i'm in this after the trial so there's no way that in evidence or hearing would ever clear up what the state of mind was no no your honor and this court has said that the conflicting evidence is not clear and convincing evidence and the most that austin would ever be able to show is conflicting evidence you would always president very fairly carefully at the bottom of these handwritten statements yourself and it's pretty close to your end we've got cases say that they're not well iran or if you think that that's enough and that answers that question if you think that it's not enough in these in these statements are not to be credited what's your best case it's not in that i don't i don't have a case your honor we didn't we didn't make that argument we just decided only versus off shore under rule fifty six and explained when it is enough and wh versus massachusetts i realize it was a different situation closing the courtroom or whatever versus juror bias does that have any impact here on the and now this is a structural error and it's effect and whether you have to show prejudice and all that kind of stuff and i was  again your honor the case off off the top of my head escapes me but the supreme court has twice one has cain in in the name said that at the end of the day in in haiti yes you have to show that there would have been a different result and so i think that that is that line of cases weaver is on top of this which says when you when you're in haiti a something things are not the same as on as on direct appeal and your argument here is it when a matter yeah when somebody threatens i'm going to do this right and so and when somebody is asking for it and saying he didn't just ask for it he went through the legal standard and he said under issue one there's this that and you bring other the prejudice  to the pipe claims in this case and it's very important judge over one of the questions you were asking about well is it wholly unreasonable to think that perhaps you know maybe it was a rational thing or maybe it was the segregation that was doing it or what have bricks and it's it makes a big difference because then the question is just for this court objectively looking at the material does it raise a question and then when the judge finds out a trial the bought the been sold as a bill of that inquiry and make sure that this isn't someone who is incompetent if there's any doubt not because the evidence would said it would justify a finding not because it's shown by a preponderance just if there's a doubt the court has to look into it and make an adequate competency inquiry the second point you're on to is related to that which is that there's no twenty to fifty four day difference on the competency to substantiate competency claim either claim challenging the conviction because it was brought in violation of the constitution twenty two fifty four day can only by its own terms can only apply to a claim that is brought on appeal or in post conviction in state court it has to be adjudicating on the merits the federal constitutional claim challenging the judgment of the state court on the basis it was unconstitutional that's the language of twenty two fifty four n day that's the structure of it and it's because twenty to fifty four day is not designed to make state trial judges infallible in federal court it's designed to ensure that the court gets the first shot at ruling on a constitutional challenge to the conviction and that state court's ruling on that challenge is then respected in this court unless it can be shown to be wholly unreasonable contrary and  of demonstrating that twenty to fifty four day doesn't apply there is to think about the implications of cullen vs pinhole stuff if the trial court's ruling on competence at the time of trial counts as a twenty two fifty fo that not not that type of crime you're on it it's the idea of a post conviction substantial competency crime is going to be based on how everyone thought the on but the part of its interest i mean i'm a texas licensed lawyer i do cases in mississippi frankly we don't do post conviction work in louisiana because we do a lot of consultation with other trial lawyers and if you do as to the third of the four points i wanted to make them are vital to the state makes its claim that only logical understanding of the proceedings and inability to understand the rational choice and whether that's substantially unpaid not just whether you can rationally understand the options in front of you and logically understand them but they might get crazy choice and this isn't about we might disagree with the decision but those that make it irrational it's about whether it's a substantial impairment all rational decision making from the mental illness and this court has resolved that question in rumba this is per cuneo this court laid out the three questions do you have a mental illness do you understand the options in front of you and if you do you still have to go to question number three i used substantially impaired in your ability to choose between them because of your mental illness and in good dinner is what the ninth circuit had done was said that by applying the bad dusky standard the state court hadn't taken into account rational choice therefore the state could have applied the wrong standard and no difference was due and what the u s supreme emphasize that enough because if this case is just about whether or not perry austin logically understood he was in a courtroom and who to judge was and who the lawyer was and what the charge was then we definitely lose all wise competency points because he clearly understood that the whole issue in this case is about the extent to which he's mental illness substantially impaired he's ability to make a rational choice that's what the trial  procedure failed to inquire into that's why he was incompetent you had a point for i was just going to say a lot of rational people make some pretty irrational choices and drive too fast and jump out of airplanes things do things that are bad for their health thought that by agreeing on the procedural posture and it is important for both the pipeline and the ineffectiveness klein trial counsel got into the case and within two months filed a motion for funding for defense counsel to have access to an expert for that expert have access to mr austin for the preparation of the whole of the case in that pleading defense counsel did not say the word granted defense counsel being did not engage dr brown had defense counsel engaged dr brown and dr brown had been acting on defense counsel's pot the basic standards of practice for defense lawyer would have involved honor because that appears in tot in the chambers mating we don't know where we don't have the transcript so at that point the judge says i'm not going to  without a psychological assessment and we know that because the judge describes that at the start of the for read a transcript that's really that and dr brown's own report sources of information so the judge describes getting lawyer then the court sort of stole doc brown and say well i'm appointing him to do the competency assessment at which point he was on equivocally a court expert he wasn't defense counsel's expert he provided a report directly to the investigation or anything else got the funding didn't engage the expert to do anything with that and we've started the authorities saying that once you're on notice of mental health you've got to conduct an investigation and the court not defense counsel a competency assessment and that competency assessment came back predicated on incomplete and material materially false information and then at trial as judge hines you described a trial the trial court became aware that the competency reported you've gotten was predicated on materially incomplete materially false information and at that point the elephant in the room is he doing this because of question was they it had to be answered there was a procedure which we submit was inadequate in the trial play trial the elephant was still in the room and then we get to trial and that whole procedure is entirely undermined and the question was never answered and that's the problem and that's why the principle in pipe stands for the requirement to conduct the hearing because otherwise the way put in the trick bag of trying to prove it in one protect fashion