morning your honor is in may it please the court that martin of the federal defender office in detroit on behalf of petitioner denard peterson i'd like to save three minutes for rebuttal you know the state trial court improperly deprived mr peterson of his right to appellate review of his conviction with coun because of his mental incompetence and based on the and reasonable conclusion that a motion for relief under michigan court rules sixty five hundred was an adequate substitute for his direct appeal given mr peter sense a profound well documented and continuing mental illness which includes delusional and disorganized thinking procedural default of that claim should not prevent his will in the same shape or worse than he was when the state court declared him to be million copies able to advise and coun yes your honor i would note two things in that regard one is that during the district court proceedings there was a psychologist who reviewed all of his medical records and concluded that throughout the whole time of what can we do for him i mean what is the if phil who were to issue  what would it say i think that what it could say is that mr peterson should be reinstated to the place that he was during the pendency of his direct appeal and given an opportunity for there to be a restoration of his competency dr white noted that he's never gone through since the time that he was initially deemed incompetent during his directly or through that said that he was mentally competent as he ask reversion when he during his appeal when after that came back that the court appointed psychologist found him incompetent his attorney did request at that point that he be committed for treatment and that was never done there was never a formal competency restoration process process and doc was committed there was a friend and fringing psychiatry and all that and everybody agreed assume that he was mentally incompetent way back years ago and so in order but what happened was he actually want to get him declared mentally competent there is a process in the state where they can go through an attempt to restore his competency that actually happened with mr peterson in regards to an earlier casey has the state i mean the federal government has never had jurisdiction over his competency don't you have to ask the state court to review his competency and not the federal court and i think that's the problem here is that there really is no mechanism to do that at this point without a grant of hay vs relief restoring him to that place that he was during his exhaust that question in the state court before we intervened to tell the state court to do something that we don't know what it is i think it has been exhausted when his attorney did request that instead of giving him a restoration treatment the court just dismissed his appeal altogether the medication that he's been receiving while he's been in the michigan prison system doctor went noted has just been at aimed at sort of managing his behavior so if he's just sitting there not hurting himself or others there's been really no effort to restore him to competency is there any order by the stake or opinion or anything that takes up the question of whether a still  mentally incompetent and therefore would be in a position to advise with his counsel in the proceedings no one i think that that's something that could happen if the course have to follow mr peterson has exhausted all of his his michigan court the avenues for him to prepare for release the sixty five hundred motion he did file an initial sixty five hundred motion it looks like with the help of a prison legal writer and ended up not appealing that to the messing up the procedural rules when he attempted to appeal that state court but that did raise the issue of his incompetency and argue that he had been incompetent at the time of his the underlying proceedings you can say we are governed by ad but here i believe so  edward don't you have to show that the what the state court did was contrary to clearly established federal laws to tired by the supreme court right i think what supreme court case is that what the state did in the dismissing his direct appeal because of incompetency was contrary to federal law i think the critical point here and also allows relief if there's an on reasonable application of supreme court law and what was where's your case that says this was unreasonable well give me a supreme court case not hard it was a yes and one that hardaway relied on and that's why i'm playing this court to that three supreme court decisions which were douglas versus california helper versus michigan and roe versus mean any of those three supreme court cases say that the private someone of their direct appeal because of incompetence of the is a violation of the federal constitution no but i think what those courts do is to have the the what they do stand for is a proposition that a post conviction proceedings are not the same as a direct appeal as of right and the court is not enough to establish clearly established  this post conviction proceeding and that's that's directly in the michigan state court's decision and then when he came back and attempted to file that the court didn't give him an attorney or read or attempt to risk revaluations competency they just treated his post conviction proceeding as if it was an adequate substitute for his direct appeal you know i guess the other question i have is where is the prejudice here i mean your client ended up pleading no contest to the basic offense right and there was a competency hearing at that time in the distant court but i mean that was the concern that the trial counsel raised in the first instance i do think it's mr peterson's froggatt have to be able to choose whether to withdraw that plea i would i would note a couple things one is th counsel did not never said in when he moved in the original trial court that there was no grounds for appeal and then helberg versus michigan the supreme court actually addressed no contest pleas it was a defend it with a no contest plea like mr peterson and ran through a whole list of issues that can still be raised even when a defendant pleads guilty in that way in the court also noted in emphasized that navigating that appellate process without a lawyer assistance is a perilous endeavor well beyond the competence of individuals like mr peterson who have little education learning disabilities and mental impairments so i would note that it's important that he does get a chance with counsel to go over that you just got through saying that his competency is not returned so what good is it going to do i don't understand what it is you want for him you want to have a review the earlier ruling by the state trial court back out for room for psychological review and said that he is incompetent right and if he is still in common what good is it any kind of federal relief going to do i think it's important that there's never been a fine that he could not be restored to competency and that is something that the state believed that the state court could attempt to provide there was no effort made  review that this i guess you'd have to go back to the state drop court and that's exactly what we're we're asking for essentially is hey vs relief that would allow him to go back to that place where he could ask and the state court can make that decision  you ask the state trial court to review this so that his competency now don't you have to do that first i don't think there's a mechanism for him to go back and ask that the state court review his competency when there is already been he's already gone through one round of view in terms of his his post conviction really you have any case and all the be direct precedent for what you're asking us to the there's not been a supreme court case that has directly dealt with the issue of an incompetent i don't feel it's been dismissed because with this situation now i think this is a unique situation i think that this court has to look to some of these the principles in the supreme court cases that what the supreme court has made it pretty clear that we can't find clearly established supreme court precedent that was available at the time the state court acted we can't find that precedent by extrapolating from something else that they've done it's got to be clearly established and that's i'm really struggling to find under the had to standard what clearly established supreme court law you're looking at that was in fact extent at the time that the the state courts and the particularly the actions that you're complaining of at the at the time those orders were entered right i think that the key here is that this this treatment of being able to go back and get relief later if he regains competence was that something that was equal to having that direct appeal i think that this would have been a different question if they had actually when he came back on the sixty five hundred motion gave him an attorney or re evaluated his competency at that point and made it something equivalent to a direct appeal but that wasn't done here and i think that that was an on reasonable application of what the supreme court has already said i'm very sympathetic with your situation because if you were in federal court you were appointed by the federal judge to front advise him concerning the lawsuit in federal court you undertook the case at that point so you had to deal with that case and i'm sympathetic to that but have you had an opportunity to talk to the client i have you on and you can't really communicate with him much that's that's correct at this point he speaks mostly i think one is from the michigan attorney general's office here on behalf of respondent abu ali paul klee hideous is an extraordinary remedy in the district court in this case was right to deny petitioner hey vs relief the state asks this court to affirm that denial a certificate of appeal ability was issued on was granted on two issues and there's also a third issue regarding whether the district court was right to apply equitable telling and i plan to focus today on the two issues that were certified for appeal and rely on my brief for the equitable telling issue the most direct way to resolve this case is either on procedural default grounds as the district court first found or on the merits as the district court alternatively found  procedural default as this court knows is a preliminary issue in this case it is not complex the district court was right to find the claims defaulted and there's been no dispute that they are defaulted there's no dispute that he can't fish or can't show a fundamental fundamental miscarriage of justice the question is whether he can show cause an actual prejudice to excuse the default you need both the district court found that he couldn't show cause based on his mental illness but this court may not even consider that because he most certainly can't show actual prejudice and actual prejudices this court said in ambrose and jones cannot be presumed show prejudice to excuse the default because he can't show that the the either the proceeding was infected with constitutional errors or that the the plea proceeding the underlying ple and it's hard to see how he gets past showing actual prejudice to excuse or get around the default in this case there is no evidence that at the time of the pleas proceeding he was incompetent or that there was any type of constitutional error at the time of the plea proceeding and that's something that the district court addressed and found that there was no error there and there's also no if there hadn't and if he hadn't been suffering from the the mental problems and having entered the plea that he entered had he then decided that no wait he really didn't want to do that and wanted to appeal so that he could withdraw the plea himi actual right to the appeal duty he had a right to file a notice a request he had at his appeal at that point would have been by leave it wouldn't have been an appeal of right right now one of the things that i've been trying to sort of figure out here is under michigan michigan's procedures when you file a request for leave to file a direct appeal where does that  where is that filed that is filed with the mission court of appeals so that wasn't done in this case a claim of appeal was filed with the michigan court of appeals and he was appointed appellate counsel he was given a pallet counsel that then resulted in his going to the trial court and saying help because i can't talk to this guy and he wants to withdraw a plea which would be really detrimental to him to do what happened as a pal accounts will met with met with petitioner found that he has was having trouble understanding the consequences of very serious consequences but the place where i'm having trouble kind of sorting all this out is that the district court or the trial court then dismissed the appeal and i'm trying to figure out how the trial court could dismiss something that hadn't actually leave hadn't been granted to appeal counsel to express his concerns about going forward with the appeal and as i indicated his concerns were very real and serious concerns and he also asked the trial court for another competency evaluation which came back finding petitioner incompetent and he didn't understand the consequences of withdrawing his plea so the appellate attorney at that point acted very reasonably and asked either for some type of treatment from the trial court or for guidance on how to proceed public counsel wasn't sure how it was that it was the trial court that that he turned to to ask for guidance and the trial court ultimately found given given the circumstances of his incompetency that the better course would be to dismiss the appeal with the right to give him review down the road should he regain competency and then it would be up to crown court in the he's being treated for his mental illness and has been from from the beginning and going back to prejudice briefly i mean the other thing he can't show is that he wouldn't have taken this plea had he been i mean he was competent as the state's position but he wouldn't have taken this plea this was a tremendous benefit for him this plea he was he was charged with forcibly raping and assaulting a seventy three year old woman there was strong evidence against him the victim identified him in a lineup he made a full confession after being mirandized if this case had gone to trial he would have been facing very serious consequences he would have been facing potential consecutive sentencing that's for the first degree criminal sexual conduct and the home invasion and possibly enhanced sentencing due to his habitual second status so this was a very favorable plea that he did accept  and got a minimum of twenty three years nine months right he did your honor but but again considering what he was facing and the very real likelihood that he would have been convicted given given the evidence against him it would have been significantly longer had he not plaid ambrose and jones made it clear that in order to get past a default the petitioner has to show actual prejudice and it's the state's position that this is his claims are clearly defaulted and he can't get past showing actual prejudice so the court need not even consider whether mental illness can constitute cause but even if it did it's the state's position that it doesn't the supreme court has talked about  cause being some objective factor external to the defense that impeded his ability to comply with the rules and mental illness isn't something external to the defense petitioner is trying to take something internal very and turn all and make it external but it isn't consistent with the supreme court's language in murray and subsequent cases we've got an eighth circuit case now without holding the power sox the whole mental illness can be call it there is an eighth circuit case and it does hold that the state or just the court to follow all the circuits that that hold that mental illness is not that of those opinions are more consistent with the supreme court's language in marion coleman but even if the court did follow something like the eight circuits decision in holt it should find like the district court did the petitioner in this case just didn't meet it it's a high burden to me and he he didn't meet it he didn't show why he couldn't proceed to the michigan court of appeals but could somehow initiate an appeal to to a motion for relief from judgment to the trial court turning briefly to the merits of the case if the court were to bypass the default  relief would not be warranted also on the merits petitioner concedes that add popeye's to the underlying claims and that there is no clearly established supreme court precedent supporting his position the trial court and hear hear reasonably found that appellate counsel was not ineffective for the actions that he took he met with petitioner he had concerns about his competency he ended up asking for an evaluation and after that moving for guidance or treatment guidance how to proceed and there's just no supreme court law giving guidance  with incompetent defendants who want to withdraw their plea without practical miner he doesn't have any family wants to take care of you obviously has to be if you were free you would have to be taken care of doesn't have any family so the only place that he can be used under some kind of governmental supervision the control that seems to be the case yes how old is he that is a good question i i'm not sure believe in his mid to late fifty's at this point i'm not i'm not exactly sure  cases that the petitioner cited as supreme court precedent don't stand for the proposition that either his right to effective assistance of counsel was violated or that the trial court somehow violated due process and dismissing the appeal and handling the case as it did in this case  i wanted to note that flores ortega isn't is distinguishable that was not a default a case that didn't involve the default context so that case is distinguishable and in this case tago where the defendant's appeal in that case was entirely forfeited here petitioner did have a review of his claims by the trial court on the motion for relief from judgment the trial court here did not apply a procedural bar it didn't summarily deny his claims the trial court applied issued a detailed opinion applying to no will review to all of his claims and it's the state it does not apply when the defendant actually gets a post conviction review as the petitioner in this case dead and as i indicated earlier petitioner hasn't shown any clearly established supreme court law prohibiting dismissal of the appeal of the trial court did in this case or requiring the state to recognize a renewed direct appeal after an initial one is dismissed under situation like this due to his incompetency i'd like to just briefly touch upon the equitable tolling it's the state's position that the district court was wrong to equitably toll this case the petition was clearly  untimely i think with the district court did here was get petitioner the benefit of the doubt to believe the district court was a little bit lax in applying the equitable tolling doctrine the state does not dispute the petitioner has a history of mental illness only that it hasn't consistently amounted to mental incompetence for the entire time and that it hasn't prevented him from time from timely filing a petition or from filing it earlier and that he was diligent as indicated and in a brief there were periods of time where petitioner was filing either pro se or with the help of prison legal staff other matters and we're  talking about with the trial court where the state trial court with the michigan department of corrections he was hand writing grievances with the michigan department of corrections and his handwriting is difficult to read no doubt but if  can make out what he's saying it it it makes sense i mean if he's not i mean he's he's raising claims that are you know that are somewhat illegible but when when you can read them i mean he's his claims aren't totally baseless and he also filed the pro se civil lawsuit with a federal court this was two thousand and eleven i believe and in two thousand and ten he was filing matters with the with the trial court and with the michigan department of corrections and all that shows is that his mental illness didn't prevent him from filing other matters and if he could file these other matters with the state courts with the federal court he certainly could have petition earlier than that he did it again the the most direct way to resolve this is on default grounds or on the merits but that the state also believes that the district court erred in applying equitable telling the state respectfully ask this court to  i would point this court to the supreme court's decision and mabel's versus thomas which recognize that it's the court has struck a balance that respects finality while ensuring that fundamental fairness remains the central question of the writ of habeas corpus existed because the petitioner quote was disarmed by extraordinary circumstances quite beyond his control i think that reasoning applies here because peterson's mental illness represents the same type of extraordinary circumstances  top of that even if this court were to find that severe mental incompetence as a rule doesn't give rise to cause for default it could still find in these unique circumstances that it did because the state failed after dismissing his appeal for incompetency to ensure him  representation during post conviction review making the default attributable to the state in the us as a supreme court as mentioned this term external to the defense giving rise to  district court has responded has noted cited petitioners filing of an initial collateral attack and some of these other documents as proof that he could comply with the state procedural rules but d made clear when he testified that given peterson's mental state he couldn't have been an active participant in those filings and must have relied on prison legal writers i think it goes without saying that personally all writers are the same is affective assistance  of counsel due to lack of resources they have no obligation to continue assisting inmates i think that underscores actually why it was inappropriate for the state court to consider post conviction proceedings an adequate substitute for a direct appeal without giving peterson an attorney to assist him in doing that i would also note that in similar contexts equitable tolling or prison rights exhaustion requirements this court has recognized a mental illness can excuse failure to go you are saying is you want order from the  one thing he could challenge and that is his sentence which i do think there is a question whether it is his right to elocution was problematic in that in that he started spouting off this random word salad during his elocution state judge all these we asked this court to grant