may please the court we are here today because anastasia schmidt was condemned to fifty five years in prison for killing a man who had beaten raped and tortured her and west of her daughter for the years leading up to the death is there any challenge to the length of her are here because anastasia was tried in a time where she was taking fifteen powerful second topic drugs where her co counsel testified that one of the largest difficulties was determining when anastasia was responding to reality as opposed to the voices in her head and where lead counsel received what he believed to be a firm plea offer during the trial that would have had her release from prison eight to ten years ago yet he failed to communicate this to her for he felt she was so mentally debilitated she would not even be able to understand what him there was in the record there is an occurrence where she worked at a tattoo parlor where she attacked a man with a hammer because she thought a demon was coming out of his head there was also different points in the record where she would disappear for days on end  are where she was she got found by the police in the alley with no clothes on at one point after being gone for a week she also had five hammers so there's so the hammer it would be an example that her mental illness might have driven it if that is correct she also when she was a child she her mental illness dates back to a teenager join her teenage years she threatened to kill her stepfather because of his abusive treatment of her and in the case osha vs boughton this case this court addressed analogous fact patterns the standard of bitter view is under holland versus in the holland case by the supreme court a defendant is entitled to equitable toing if they is that the circuit court should review the district court's opinions and see if it's on a reasonable term nation of the facts or misapplies clearly established federal law or the district court stated that she was not entitled to equitable toing based on two findings one that she presented no information regarding the efforts made to obtain the doctor her legal documents and to that she did not explain why the case documents were nexus or what evidence would would you expect her legal documents she could present she would present evidence in the form of affidavits as well as a letter of the repeated attempts she made to would contact her counsel to get him to send her legal documents as well as the repeated effort she made with the court in addition for the first half of the limitations period she was still experiencing the debilitating effects of her mental illness as well as like a topic drugs we were we would be able to enter into the record the drug she was on and the fact those had on her and how they precluded her ability to put forth a legal argument she was on fifteen different so i could drop trou the judge had drugs in my current correct and she continued to be administered those drugs until october two thousand and seven which was over half the limitation period run during that time following that she continued to request her legal documents and was denied until october two thousand and thirteen the only evidence that is in the record before the district court is her sworn petition as well as the correspond that state that she repeatedly requested these documents from both the courts as well as her attorneys and was denied it every request that also state that she was dealing with the effects of the second topic medication for the first half of the limitations period and it prohibited her from putting forth a legal argument and that those were those were the only claims in the district court record the state made no effort to rebut any of these claims therefore at the very least there should have been an fundamentally different from other people is true you know schizo friend x they don't they when they cross the street you know they're watching for traffic right to him her her regard to situation which every insane person is not to be responsible for criminal activity i believe the issue upon appeal regarding her mental illness is actually the fact that she was not competent during the trial and therefore her constitutional rights were violated she was taking fifteen second topic drugs prior to the trial is no use so the the obscenity issue involves her at the trial of insanity issue which was decided on the criminal appeal is that she was insane at the time of the killing the the post conviction appeal which we're addressing today because and also why does it matter if she was insane during the trial why does that why does that matter unless she has some defense to the murder charge if for only defense the murder charge was a psychiatric defense that psychiatry's reject what what what possibility for relieved the constitution because it demands competency during the crew a criminal trial is in and of itself a violation the constitutional rights that she was not competent to stand trial therefore that in and of itself requires the trial to either be retried or the right to be granted the criminal trial or the red to be granted based on the fact that she's being held against her constitutional right so the the issue upon appeal regarding her mental illness is she was severely he was an aide in during the trial she was mentally disturbed debilitated from the amount of drugs she was taking she was unable to communicate or her lead counsel testified in the post conviction hearing and therefore because of that that's it's a fundamental constitutional right to be tried while competent her lead counsel in the post conviction hearing stated he felt she was unable to make no involuntary writes if she was competent right she the premise of the plea offer i think was put maybe the most egregious error it was the prosecution brought forth an offer for reckless homicide which the heard  a plea offer a firm offer if she would have accepted that she would have been released from prison eight to ten years ago her counsel stated in the post conviction hearing that he felt she was so debilitated that a b he couldn't even bring the offer to her and if he had brought the offer to or he would have been met with only a blank stare that in itself it self is a grave injustice as the supreme court has stated recently the police discussions are the premise of our legal system are a large premise for a legal system now often more important trial for her to be not even have the right to engage in a plea discussion is there would have had to released as i said if she would have received a maximum sentence under reckless homicide under indiana law she would have been released eight to ten years ago but the fact that she was so debilitated during trial preempted that for her so we because of that i feel the rich should be granted as this case  equitable tolly that is particularly given her well documented history of mental illness the fact that she was present say below and the fact that she was denied access to her own case file access to the legal file for almost the entire one year period however in that case petitioner presented evidence to the district court and forms of letters communications requesting his legal file from his trial counsel he also some letters to his trial counsel supervisor and it it's important at this point so it was on represented when he was requesting these documents from his trial counsel he also sent letters to the trial court requesting transcripts and importantly here though hearing for example he could have scheduled a hearing but the fact remains here in this case the evidence that would present it by the petitioner this case to not a total wreck patrolling the district court was not presented with any evidence in the original his petition if you look closely at her original petition under timeliness there's no mention of competency of why she was requesting more time it was simply that her legal file she would not have access to a legal testimony at the post conviction hearing from her lead counsel that he did receive a plea offer in the bathroom during a recess run the prosecutor and that he discussed that with the judge and that he thought the judge after discussions thought that plea offer wasn't going to happen and he does on direct examination state that if you would have discussed epley offer with her there would have been a blank stare however on cross examination he says i don't remember the exact reason why i did not bring up your was no plea offer for this country last the prosecutor at the post conviction hearing testified that he did not offer a plea to the defense counsel in the yarnell he said it's not my practice law you have heard you got her her lawyer thought he had he had correct testimony testimony from the prosecutor that has practiced the rule there was no written offer there was no offer given to defense counsel and then you have the testimony of defense counsel so the post conviction court at that point was well within its discretion to give weight to the prosecutor that what we have hearings because you have here the trial took place ten years prior and then the prosecutor's testimony at the post conviction hearing was on contradictory it wasn't it was unequivocal he testified that there was no plea offer then you have a defense counsel session with post conviction he was which was inherently equivocal he testified that there was a plea offer that i could bring it to her attention because i would have just received a blank stare but then he says you speaking to fail us so if you smoke yes now you say the defense counsel it's said he would have brought it to  attention but you know what yes an under arrest examination he states i would have brought it to our attention but that would have just elicited a blank stare on cross examination he testifies i don't recall why i did not bring it to her there be a record of some sort involving a plea offer and that was the prosecutor's point you know there was no written offer it wasn't his practice to discuss plea agreements in the bathroom and there was no plea offer and so post conviction court was faced with that contradictory testimony and afforded the credibility termination to the state in that instance however back to an equitable now importantly in socha courts states unlike many cases in which a tardy petitioner puts nothing before the court until the time it passed and then seek equity here oh in socha he saw once he knew his time was about to expire and federal habeas court he sought a protective extension motion saying i know my time's about up but i just received my legal file and i need more time here at no point before the district court to apprise the court of what the her extraordinary circumstances were and how she was diligent in pursuing those remedies in her initial petition she states only that i had sought my legal file it wasn't until her any one received short shrift from our justice system we're seeing it today i would i would have to respectfully disagree so you think insane people without a lawyer are hell to the same standard as saying represented there is and there was no finding that she was in fact insane or the real and at trial there was as far as her capacity to appreciate the wrongfulness of her conduct for the and she is she's saying she's always been saying the jury found her saying yes and there were doctors that found her saying as well that they were going to find her again why did the jury find her guilty if on her guilty but mentally ill not guilty not not guilty by reason of insanity and i'm sorry they did it while they found her guilty but mentally ill as opposed to not so the jury didn't think that sewers same i would disagree they did think she was sane or else they insanity i do your honor all right now tell me what the difference is mental illness i mean you could be diagnosed with any number of mental illnesses is this an argument about medicine or about india and the war in particular is there a definition of mental illness in india in a war that the jury verdict was referring to no there was not no no special definition of you know as far as guilty but mentally ill when you're found guilty but mentally ill surely the instructions to jury was presented with three verdicts guilty guilty but mentally ill or not guilty by reason of insanity and again to the threshold question here whether or not this petition was timely petition   she was represented by counsel prior to that when her motion for modification was filed once that was denied she received her case by a back proximately a week and a half later i believe now it appears as the melendez case in the seventh circuit which we cite in our brief that both her and her counsel at the time who was also her post conviction counsel were did not understand that the proverbial clock was ticking when the motion for modification was filed and when the success towing and as to diligence we have petitioner's assertion that she sent eight letters to the trial court and the truth in the year of two thousand and thirteen i believe three or four of those letters were sent prior to may sixth two thousand and thirteen when the limitations period was set to expire and four three were sent after all there's nothing in the record that's ever been offered to say what those letters were we have if you look at the sick chronological case summary from the post conviction court we have one of those letters she sent a stuffed animal to the judge this was all about the time she was seeking modification she sent a stuffed animal that she did in order to do the reasonable inference is that she was seeking filed within the month he said what i gave you is stuffed animals let me out and then she filed a motion for modification the only does that strike you as the behavior of a normal person in india i can answer that with respect to the only letter in the records we have requesting any information with regard to these eight letters is a request for the docket to which the trial court obliged so we have nothing in the record to suggest after she was off for medication in two thousand and seven from the deal see that they allege in their brief that she ever filed any request seeking for legal material from timely filed a petition from her direct review to october two thousand and seven she i'm she did file in two thousand and five the net was one hundred eighty six days after the limitation period and days ahead run why she's claiming she was incompetent she files a pro se post conviction petition and the trial court now if the court looks at that petition she cites the facts of her case she cites to strickland she applies the two prong test to her ward for mentally ill prisoners at the prison i don't know your honor the guilty but mentally ill verdict would have been struck to deal see at the time that she was under she had some sort of mental illness to be evaluated when she was sent to the d pleading stage the petitioner is not required to carry a burden of persuasion rather she must only assert facts under which she would be entitled to equable tolling as much as mr florey stated there are a lot of things in the record that are not clear she sent numerous letters fact that she was on second topic drugs and was dealing with mental illness for at least half the limitations period that she made numerous requests dating all the way back to her criminal trial to every lawyer and every court who had access to her documents and she was denied the record to grant equable telling the factual record needs to be expanded to address those claims in addition i would like to state that regarding the plea offer mr flores is correct the prosecutions did defendant of the even entering into a plea discussion is the is the grave injustice she wasn't even allowed to evaluate the claim because as her defense counsel stated she was so mentally debilitated she would have only responded with a blank stare if he came to her presented her with the police deal that would have given her two to eight years at maximum she was facing fifty five years life in prison and she was deprived of that right as he stated very clearly she couldn't even engage in the discussion he stated that it was not a firm offer because it was the practice of his office to have every firm offer in writing and there was nothing in writing however he admitted that there was the beginnings of a plea negotiations discussed in the restroom that she was deprived of so therefore i would like to respectfully request that this court grant equitable tolling however if this court feels there is insufficient evidence in the record to to remain on the case from the district court for expansion of the