all right europe's may please the court i'm david down representing jury hartfield and in our view this case turns on three fundamental essential facts the first is that the sixth amendment violation that underlies everything that has happened in this case over the past three plus decades is the most egregious sixth amendment violation that we have seen in the history of the united states criminal justice system the second is that the state has had numerous attempts over the last three plus decades in order to correct this error there have been at least nine different legal proceedings that ha been filed in at least six different states for us and in none of those occasions has the state taken advantage of the opportunity to address or remedy the sixth amendment violation in addition mr hartsfield came up for parole at least fifteen times during the thirty plus years that he was being incarcerated despite the absence of a valid conviction and on every one of those occasions the district attorney that was responsible for the prosecution was notified of the existence of that proceeding and yet did nothing to remediate the situation finally third there has been nearly continuous bad faith on the part of the state over the past three plus decades that this case has been bouncing around the various courts it began when the district court clerk sent a postcard to the texas court of criminal appeals indicating that its mandate to give mr hartfield a new trial had been carried out and it has continued all the way through the briefing in this court in july of this year the attorney general filed a brief in this court suggesting the possibility that the murder weapon in this case might still be found when in fact a year and a half before that in december of two thousand and thirteen at a hearing in the state court concerning the sixth amendment claim the district attorney acknowledged on the record that the murder weapon had been lost now in the attorney general's defense there may well be some legitimate reason for doubting the reliability of what the district attorney said because in the same proceeding where the district attorney said that the murder weapon had been lost the district attorney also said that no other evidence had been lost and in fact as we learned at the trial that took place this past summer that representation was also falls there had been a single piece of evidence at the original one nine hundred seventy seven seventy eight trial that connected mr hartfield not to the murder but to the crime and that piece of evidence was a fingerprint that presumably belonged to mr that statement at the one nine hundred seventy seven proceeding was false and it also turns out that the evidence that had mr hartsfield stinker print on it presumably connecting him to this dr pepper bottle disappeared by the time we got to the trial in august of this year so what we have in this case is a man who spent more than three decades in the custody of the texas department of criminal justice despite the absence of a valid conviction or sentence when we have our numerous efforts on be on the part of that individual to call his plight to the attention of various state courts and what we finally have is the state going forward with a prosecution despite the fact that it lost the murder weapon despite the fact that at least two witnesses had died between the time of the original trial and most recent trial and despite the fact that a third witness whose testimony was essential to the original trial pieces i'll do that judge stuart this case was filed in federal district court after bouncing around the state court system was originally filed in federal district court in two thousand and seven as a twenty two fifty four proceeding the district court judge recognized or at least suspected at that point that mr hartsfield was not under a valid sentence or conviction and that therefore twenty two fifty four didn't apply and the district court judges this court has indicated is permissible in a variety of contexts including united states solaria which two of the judges on the current panel were present for it is perfectly permissible to transform a petition that is filed under twenty to fifty four into a twenty to forty one proceeding once a district judge realizes that there is not a valid conviction or sentence however once a district court judge did that the district court judge also recognized that he didn't have a venue over the action because there is a different venue provision that is applicable so he transferred it to the appropriate court that judge judge snyder believed that the issue had not been exhausted although in our view it had been exhausted and at that point in two thousand and eight counsel was appointed to represent mr armfield it was the first time in in all of these years that counsel was appointed on all of the previous occasions when mr hartsfield was filing something in the state court those documents were prepared by jailhouse lawyers the record reflects that mr hartfield has an i q that is somewhere between fifty one and fifty eight the district court judge ultimately concluded that the issue was not exhausted and then that decision was appealed to the fifth circuit the fifth circuit was confused as to whether there was a valid conviction or sentences in two thousand and twelve and it was a different panel of this court and that panel in two thousand and twelve certified the question to the texas  legitimate conviction or sentence operating here in the texas courtroom peals answered that question in june of two thousand and thirteen and said no there isn't and in that same opinion in which the texas court of criminal appeals said there is no valid conviction or sentence it identified two state procedural mechanisms that would be available for mr hartsfield in order to challenge the speedy trial delay in bringing him to trial again mr hartfield then represented by current counsel eight days because the elephant in the room that occurs after the briefing i think is the conviction and therefore they cite they cite forget the background just that that the ten circuit yellow bear case the eleventh circuit made very case would you ask us to create a split with them or do you think they don't control i think i think certainly yellow bear doesn't control i don't think that it's been followed anywhere i think that there are but so therefore you think it's erroneous the interaction of two twenty two fifty four and twenty two forty one it's description of how those two interact is error i think that the that the law in this circuit is that the date of filing controls that law that applies to this or is to diversity that's the law that applies in our view to this case  issue is being litigated it is being litigated as if the trial has not occurred and what that means is that even when you have a valid conviction you therefore have to raise the issue in a twenty to fifty four proceeding in so far as numerous cases from the circuit that say that the only remedy court really wrestled with what's the possible relief here but but the predicament that you're in which is not your doing but your client was convicted and so i read supreme court long donald to say now you teed up it's perfect you've got the trial to be able to show just how harmful that delay of time was the lay of time per se doesn't reach a speedy trial like violation but instead you've got the trial record to be able to make your argument that we judge against and i think that we could make that argument and you will right i believe that we made that argument prior i know you say that you did but now he's been convicted and the real question i see is just one of posture would we intercede interrupt your direct appeal from the conviction with the trial record to establish what the prejudice to you was that's correct judge but under the bark of the window analysis when you get to the fourth prong and you examine prejudice that is typically done prior to the trial the prejudice analysis conducted prior to the trial we would be willing and in fact quite happy for this panel to address the prejudice question without even looking at the trial was simply looking at what the evidence on the eve of trial or at the time of our briefing was which was th weapon was lost and that critical witnesses were dead and that more than thirty years have elapsed and that the state had had the opportunity to bring this case to trial numerous instances over the preceding thirty years that this court doesn't even have to look at what happened in august in order of you must know this case backwards and forwards when you say the weapon was lost it was a coke bottle right wasn't a coke bottle now the murder weapon was a pickaxe there was a bloody cocoa that was found at the scene that was not the murder weapon where were your client fingerprints if you accept the original trial proof if you accept the original trial our client's fingerprints were all on a piece of a dr pepper bottle that was found at the scene of the murder crime that was not the murder weapon and was her blood on the bottom blood was on a different portion of the fragment from that ball although there was no blood of our client on a piece of the dr pepper bottle that included the victim's blood and then there was substantial testimony that that his statement is the only thing that connected the police to her vehicle is it fair to say the only thing that connected him to her vehicle was as was was testimony from a police officer who has died since the original trial who was not cross examined at the original trial whose testimony that was not cross examined at the original trial was read into the record this time that's the only of an instant connection to the vehicle i'm not clear why it is that you don't want to go back and start this case the way you would normally when you have a conviction start through the state system and that i mean there's a twenty to fifty four problem we have a twenty two fifty four problem you may not agree with yellow there and i'm sort of taken with  and we've got a problem we so let me then say judge kane why i think with with let me postpone version of why would i want to go back and first tell you why even if you're taken by yellow hair i don't think there's yellow hair problem what twenty to fifty four does is the government acknowledges in its briefing is to narrow the circumstances under which a havey is petitioner can prevail so what twenty to fifty four does is it simply places limitations on the ability of a hay b s applicant to gain relief in the presence of a constitutional violation we are perfectly happy for this panel to look at twenty two fifty four for purposes of deciding whether relief is available to mr hartsfield and to apply twenty to fifty four's limitations on the availability of relief course you can do that because if you want to say that under twenty two fifty four you have to have exhausted and we're not sure you would exhausted i would encourage the court to look at twenty two fifty four b two b where one excuse for exhaustion is that the state court has had numerous opportunities over the years in order to address in order to address the violation there's a case called it's only the case called brazil against somebody i don't remember that this court is expressively held survives and put so that if the state takes too long in order to address a constitutional violation then exhaustion is excused not under twenty two forty one but under twenty two fifty four so this part of the problem is not this has been briefed to us right and it wasn't even the certificate of appeal belittle where look we were and no fault to you but we were looking at a special circumstance case i think that's right judge him said and this is a special circumstances case and to twenty two particular problem that we're wrestling with i think that twenty to fifty four places substantive limits on the ability of this panel to great relief yes and that those substantive limits are met in this case see fit that's just you know suggestion in any event we'll hear from mr barker to what the controlling case law is and let me start with this is i think as members of the panel have recognized this is a very narrow appeal issue certified by appeal by the court was whether the special you responded to it was in a twenty tex that's not his fault but i think one answer would be the twenty two fifty four bodies plain language does say cannot grant unless but then it lists a couple of exceptions right and wouldn't the constellation of factors he's just indicated meet those exceptions well let me list them in thirty years where the state doesn't dispute now that he would never had a valid conviction  state order to retry never retries doesn't get counsel i don't know for how many years and has an intellectual disability wouldn't those meet the twenty two fifty four b one exceptions  to the arguments we would where that issue ever litigated a lot of those go to the merits of his six seven so let me start with he mentioned intellectual disability no court has ever found that that was his contention and he put some evidence  there that the special circumstances exception to exhaustion was met he argued that in the federal district court proceedings and judged niters rejected that and dismissed that first federal habeas petition for failure to exhaust state procedures opinion but it at least that should be considered well cases are determined that the special circumstances argument about the time at least until this court ruled in twenty thirteen is not meritorious it so now we now let's look at the last period from twenty thirteen that we vehemently disagree with the suggested the parties agree as to the first point does the record have common agreement as to when the state knew that the commutation wasn't valid that's a disputed disagree with that and in fact if your question is asking about the state's good faith which is force a marriage factor as well that's an indispensable if we were looking at the speedy trial act if we were to reach it the twenty to forty one or however that would be the core  claim whether it was a strategic choice by him represented by counsel at all relevant but and again i don't think the merits are before this court that is far outside of the procedural question in the certificate of appeal ability and you have  that he's not saying malicious prosecution he's saying as of two thousand and thirteen the state of texas should have even mediately released him he's not he's being falsely imprisoned or immediately tried and i guess your response is the record would reflect that once the court of criminal appeals stated that he there was no valid conviction what was the basis to keep him in prison at that point he was indicted for murder in so so they've been a separate bond on the superseding indictment at that point the specifics of that because there was no challenge and so he had to claims his original federal habeas petition he had his fourteenth amendment claim there is no judgment of conviction but you're holding me as if i am right state disputed that ultimate state was lost  yes a six minute claim but also a fourteenth amendment claim and all the c c a was saying and if you look at this the c c opinion is the past tense it says that mr hartsfield let me begin by addressing what i think is the issue that you encourage me to address judge who are the fifth circuit and u s v underwood held in twenty ten that the issuance of a certificate of appeal billet a subsumes other issues and the issuance of the certificate of appeal billet in this case with respect to the question of whether there are special issues that are present subsumes the merits of the sixth amendment issue how do we know that we know that dickerson against what we see in itself where the court says and i'm just going to read now briefly from pages two twenty six to two t seven the court recognized in braydon however that federal hate b s is available to adjudicate the merits of an affirmative defense to a state criminal charges prior to a judgment of conviction if special circumstances exist thus the question is whether such circumstances exist here the cia was issued on the question of are there special circumstances if there are special circumstances what follows directly from that is that the merits of the sixth amendment issue can be adjudicated that raises the question court find special circumstances then send it back to the district court in order to address the merits of the sixth amendment issue in the first instance i don't think so and i just want to pause here to emphasize that mr hartfield has been bouncing around the legals the legal system for ten years since two thousand and five in both state court and federal court if this court were to send the issue back to the federal district court and then mr hartsfield were to lose or for that matter to win it doesn't make any difference if he loses he appeals to this court if he wins the attorney general appeals to this court and as this court held in us against molina's to laurie oh this court's review of the merits of the sixth amendment decision is going to be  that this court is going to have to conduct exactly the same analysis whether it does it prior to the district court acting or after the district court acting and so what we would urge this court to do is to find that special circumstances allow it to address the merits of the case and then to address the merits of the case because the de novo standard means that whatever it has to do ultimately it can also do right now that leaves the question for twenty to fifty for purposes of whether there has been exhaustion our view of course is that the issue has been exhausted it's been presented to the state courts time and time again and they haven't done anything the attorney general says we misread the texas court of criminal appeals decision reader for yourselves the c c a says you could raise a pretrial writ under article eleven zero eight in order to raise the sixth amendment claim judge snyder on pages fifteen to sixteen i think or thirteen to fourteen of our brief judge schneider's original order where he says go exhaust judge schneider reads the texas code of criminal procedure and he says you can raise this issue in an eleven zero eight pretrial writ of habeas corpus in state court so if the texas court of criminal appeal somehow got their own state rules wrong and it told us to go back to state court with an eleven  position judge schneider may be exactly the same mistake in his order when he told us to go back to state court with an eleven zero eight petition and that's exactly what we did if this court were to conclude that nevertheless that nevertheless we haven't exhausted then i would encourage the court to find that exhaustion is excused and in brazil against bradley the case that i referred to earlier this court helped federal havey as petitioners are excused from exhaustion if the state under reasonably de lay acting on his efforts to invoke state remedies the state of texas has been reasonably hesitating to grant mr hartfield any remedy under the sixth amendment for conservatively speaking ten years and much longer if we include the knowledge that the district attorney had of each one of these occasions on which mr hartfield was coming up for parole it is true that brazilians bradley is a pretty epic case and to the extent that members of the panel are concerned by that this fifth circuit has held in both williams against even that twenty fifteen decision and henderson against the even also from twenty fifteen that the rule of brazil against bradley namely that exhaustion is excused when the state unreasonably delays is still good law even in the pro post at  world i would strongly encourage this court to stop this case from bouncing around the system like the pen ball that it's been bouncing around like for the last three decades recognize that there was an egregious sixth amendment violation in this case unlike any sixth amendment issue in the history of this country this court has decided two hundred eleven cases citing barker against window i did some back of the on the low man the average length of time that the sixth amendment is invoked t challenge in those cases is between two and three years in this case it's been thirty years enough is enough thank you now barbara thank you both for your briefing in oral argument case will be submitted