days before trial was command was to command we massey tony carruthers counsel filed a motion to withdraw from the case alleging caruthers bizarre outrageous and confrontational behavior  well as threats to massey himself at the time massey had conducted absolutely no investigation of tony's lengthy personal history or mental health history or of the family history in fact he knew nothing about tony carruthers at all there were further hearings on the motion to withdraw on january second and january third caruthers w based on the allegations of of mass of the most mostly out of court allegations as well as prior conduct which had been discussed with the judge in x party hearings and on telephone calls but there's no record of those discussions and judge judge daly just recited the facts as he recalled them in his ruling these hearings were critical stage of the proceedings indeed they affected everything that occurred i need to point out of course of the court you know is that after counsel was removed from the case the state filed a motion could to continue the trial for separate reasons dealing with the witness problem the trial denied counsel when a critical stage for seeings a critical stage of course is if what happens in that hearing affects the whole trial the united states supreme court weighed versus united state said that a little differently and they said with regard to the chronic concern in the sixth amendment right to counsel at any stage of the proceedings the constitution guarantees that the defendant not stand alone in the record it is it's quite clear that that counsel was not offered to carruthers caruthers to the extent that he was even addressed which was  seldom or given an opportunity to speak said i want counsel i can't do this myself to what extent was this issue raised either in direct appeal or stay post conviction and my question really is do we have fault the issue then becomes whether or not under the facts and circumstances of martinez and the case in the case law whether or not procedural default is excused in this case your quote the core probably has much more initial collateral proceedings in those proceedings there was either no counsel or counsel was ineffective so of post conviction counsel was not offered offer or if coun ineffective that opens the focus yes mr rogers help me you're talking about the ineffectiveness of state collateral counsel in this post conviction counsel please excuse me yes  yes or and you're saying that we can look at their ineffectiveness because of martina's yes or in fact that's that's either and the argument stands or falls based on whether martinez applies to th e well martinez opens the door to you still have some other heard yes yes or lose on that you've lost on the chronic issue if if we can open the martinez door the answer is the idea that it applies only when an issue could not he they're practically or legally have been raised on direct appeal  that was the whole what was going on in trevino as as distinguished from martinez and martina's there were these court cases that said oh there's no formal requirement that it be brought up  on collateral attack it could have been brought in the arguments about that and and i thought the whole distinction went to whether the extent to which something couldn't really have been brought up until collateral attack well and a fair reading of i hesitate to say that i respectfully disagree with that but i do and the reason that i do is this i think that the door open or the can opener is what happens to a claim that is generally lower reserved for post conviction but it is not exclusively limit so limit it so that for example if there is a  way though than you then you lose on this issue we read martina's and trevino not necessarily is limited to ineffective assistance of counsel i understand that argument may not be limited i don't know right this is of counsel cases but it seems to me that it's limited to situations where you could not in some sense bring it on direct appeal and whether it's formally prevented from bringing it on direct appeal or as a practical matter making it impossible to bring it up on direct appeal those are issues but that there has to be something in the sense of you had to you could bring it up on direct appeal as  as in a procedural barossa barrier of some common right and i think and you're you're not arguing that this could not have been brought on direct appeal or you are saying  no i'm certainly not arguing that i think it kind of ready to write it up if if i'm correct in my reading of trevino and martinez that way then that also is the end of this issue for you is that correct i did not agree i think that martinez you agreed no it wouldn't be but martinez would not be the issue then the issue would be whether or not the complete denial of power had a trial at a critical seems that issues that are structural and foundational are issues that can't be either forfeited  that where you have what otherwise is procedural to fall you can get around it if it's a structural issue yet there's one it's from the circuit it's judge batchelder but the issue is different it's not a six amendment issue it's a the ineffectiveness or ineffectiveness claim of trial counsel constitutes cause that allows the consideration of a substantial underlying ineffectiveness clay and that in this case basically the right to counsel and ineffective assistance of counsel are synonymous the united states is professor pretty in court has said that repeatedly itself in other words martinez is aimed at protecting the sixth amendment right in order to do that the ineffectiveness of post convention council or the absence of post conviction counsel equating those two things opens the door for the consideration if the underlying claim a substantial so are one thing if you say those cases are not different the the big difference that i'm asking about between this claim and an ineffective us and some ineffective assistance of counsel claims is that some ineffective the council's claims in the in the united states you are required to you in effect are required not to bring them on direct appeal but to wait until you get to collateral attack where as you've already indicated today that that's not the case with respect to this claim it is not and i understood you to judge rogers just to be clear i may be being in artful about this but i understand precisely your point yes won't close it doesn't close the door in our view because it's not it is not what martinez says that martinez says if there is ineffectiveness it post conviction level it opens the door for the consideration of a substantial in effect of this claim at the trial court level and the issue is not as judge rogers suggests it which is not argued with him but it is not whether or not that the underlying ineffectiveness of claim is barred the question is whether it's substantial if post conviction is the place where ineffectiveness claims must be brought and it is all right then and it is in tennessee then if those claims are not presented then martina says if there is an underlying meritorious ineffectiveness claim it has to be considered as an equitable proposition and the reason for that is that otherwise a foundation principle of of trial will be ignore and no court will have considered that case and so that was clear i think you've answered the question let's just say for the purposes of argument you can't is structural and foundation oh and as judge justice be and he lists of the the fifth amendment well most notably about this case also the tennessee supreme court miss sided misread in misapplied their case in the context of the maybe i'm looking at well i honestly can't tell you it's been a while  think that we needed to get to the question the judge rogers has has raised and it's clearly a serious one we don't see it that way we don't read martino's that way and we read martinez is our position that the right to counsel and the right to see effective assistance of counsel are are a critical and both as a matter of laws a matter of a multiple supreme court cases this case this court case  exception i had said that i would just confine the argument to chronic but to the extent that i have a little time left i would like to address unless the court has any other questions about the chronic issue i would like to address the argersinger issue which is that the tennessee supreme court's decision basically holding stripping mr caruthers of counsel was proper because he imply of leeway if or forfeited his rights by his conduct our position is that that is squarely contrary to a number of supreme court decisions starting with the argersinger decision which says that a knowing intelligent waiver is a condition preceding to imprisoning a person for any difference be any misdemeanor or felony and that right is foundational and it is at that circumstance is actually an essential jurisdictional prerequisite to a conviction under johnson versus serbs and that absent a record showing which this one doesn't that the defendant knowingly and intelligently matter but the court is required which it did not do here to impose a protecting duty on the fundamental right of the right to counsel and not as happened  attack him which he did in a series of hearings beginning on december nineteenth in fact at the beginning of december nineteenth hearing the court addressed the defendants and said i don't want to hear a word and if i do you'll be removed from the court room and from that hearing through the rest of the hearing what happened was that mr carruthers basically sat n after the judge stripped him of counsel of the judge then finally after four hearings that his appearances in court he turned to mr president said do you have anything to say so in the eyes of the trial judge there have been these continuing efforts by mr caruthers to delay a proceeding to trial and by least i think in the view of the trial judge mr carruthers having this conflict or and disagreement with one council after another those  would draw eventually there were these concerns that mr carruthers was making threats to the council so this is not so sure we can just look at this strictly as an isolated incident through the trial judge who tha been dealing with the issues of representation for quite some time let me just say i couldn't agree with you more but but there is an issue here and it related to what you just said and that is number one there was a change in conduct when counsel was removed number two the prior complaints about counsel occur by the counsel of mr caruthers occurred off the record  proceedings number for three in the course of deciding what would happen to mr caruthers on january eighth the court catalog out of court unrecorded statements with regard to his his misconduct i respectfully submit if you go back to powell and cook for instance united states one of the barry sic elements of representation not to mention chronic is to have a warrior there to say well wait a minute wait a minute there's a burden of proof here this is based on out of court conduct here you are a ballot to impose in fact and in fact a death sentence on this man based on this killer facts of this case that bother you or is that categorically not permitted for a judge under any supreme court precedent this is a right yes or that it's not permitted for a court to deprive someone of a lawyer if say for instance they repay diddly threaten their lawyer to cause their lawyer to decline representation not saying that happened here it looks like maybe it did but let's put aside whether it happened here in the abstract situation where the where the defendant just repeatedly scares away his lawyer with threats right  well it's do the arguer singer require that you just keep going to continue to let that person do it or does it not law i mean one might say well argus on her singer didn't deal with that situation i understand what you're saying any of these other cases didn't deal with it so therefore you would logically come to the conclusion that the supreme court hasn't addressed that situation it's addressed other situations and if the supreme court has assistance of counsel the rule in our singer across applies across the board there can be countless myriad circumstances of ineffective assistance of counsel that said under that rule so first of all yes we think but i need to get to your point because what you're saying is basically it's a while right and so or arguably so if that's the rule what i think you can go up through direct appeal but under it we owe this enormous difference unless the state court has violated something that we but the supreme court has said then we just have to give deference to that let's put our trust congress which has the power  their trust in the courts of the states to apply federal constitutional law subject to direct appeal to the supreme court but when you're doing it on under it under havey is if if there's not something clear that requires this result we don't come to that result and here you seem to be arguing well we do have something which requires it it's these cases but it's all cases that don't involve gross obstructionism right allegedly gross the decision of the state court is an unreasonable application of us court precedents dealing with the constitution we come back to hope and to really address your concern here we come back from your concern to a core concern of this case which is chronic that is if there had been a warrior president to discuss and raise the issues and to represent the defendant in this proceeding then the the the record and issues wouldn't be simply that he is in  so that since age twelve or thirteen with psychotic and offensive and aggressive verbal e and that his behavior the send the signal that the trial court looked at was a product of mental illness and the problem in this case and i think other cases that kwame really helps address is for example in the united states supreme court said out of court which was here there has to be a lawyer there have to be charges not to make this more unduly compelling complex but to enable you to do exactly what you're doing now bledsoe from the tennessee attorney general's office on behalf of the state i will address the issues in turn as counsel made clear on the first issue regarding the deprivation of counsel during the pretrial proceedings on the withdrawal motions for counsel to withdraw the claim was not exhausted in state court it's now procedural default as i understand the argument it's twofold as to why the default is now excused in the first is an indication of martinez of course any indication of martinez has to be looked at in the context of how the court resolved martinez and specifically it s retention of the coleman rule generally and creating a very limited exception for a claim of ineffective assistance of trial counsel i'm not aware that this court since martinez has extended that to any other type of claim and has rejected repeated attempts to i think any any indication of that argument as as done here you have to go back and look to the analysis of more tina's and why the court reached the conclusion that it did and first and foremost as as judge rogers indicated earlier was the notion that a claim of ineffective since of trial counsel could not be raised prior to the collateral review process that is not the case here our won't represent him act can't represent him and bad the middle hearing in january of ninety six mr massey has his own counsel sitting with him in court and ultimately he is allowed to get out of hell can it not be ineffective assistance for an attorney to be arguing wholly and only before the court on his right to cease representation of this individual and there's no one they are to say but mr caruthers acts this way because he's mentally ill or let me explain to the court  this issue is it seems to me no one represented him and the fellow who was charged with it was definitely an effective your honor i hope i hope i provide an answer clarifies my position here and answers your honest question i see them as distinct claims because ineffective assistance goes to the conduct of counsel i would challenge the notion that he was deficient in representing to the court how i mean how he felt and how he whether he believed he could or could not represent him ineffective assistance goes to how he's conducting himself in these proceedings and if he providing deficient performance while representing him in their argument on behalf of mr caruthers we think well he was  was being honest and forthright with the court as to where he was at i mean there's also statements he made where he will you know he'll do the best he can but he subjectively did not believe he could provide the best representation so i guess my point is those are two very precise claims whether he's entitled to counsel immediate briefing indicates that in fact they can be flip the coin that sometimes  that i am attempting to but but your argument hinges on this that well ok let's put aside the during trial and let's talk about the real now bear in mind he had to he had two attorneys and when that proceeding was beginning the second attorney the secondary attorney was not moving to withdraw that actually came later but of course none of this was raised in state court so we're looking at to what extent the court should consider extending martinez to cover that because because we really are looking to the conduct of coun you if you allow the attorney to go on which is very frequently because because we all make this statement you know and we all don't do everything perfectly and terms are going to mess up but and judges are going to if you're moving beyond a claim of a claim of ineffective assistance of counsel at you're looking to a claim that could be raised in the direct appeal process unlike ineffective assistance of counsel ensued by your counsel correct this really kind of has into the slightly different analysis but it has into the second issue in effect the claim is he was deprived of coun earlier then when counsel was removed now some of the misconduct that supported that happened were not relying upon the misconduct prior to the december hearing to say he was deprived of that that it was ok to forfeit coun conclusion representing the right to counsel providing that and it became untenable to continue with this counsel because of the defendant's conduct i hope i mention your honour's question it's as we see it as it is a distinct claim of deprivation of counsel it's counsel sites to chronic which is ineffective assistance case and i don't cite to it that way because it's generally the right to counsel in a criminal case everyone agrees you have that right then becomes whether it can be  forfeited on the second issue but here there was no state proceedings on the first issue it's procedurally defaulted and martinez doesn't apply because it's not ineffective assistance of trial counsel and  claim that could have been raised in the direct appeal process like the other deprivation of counsel claim was raised and it's not a case where the court should expand upon the more keenness analysis i would also note and i'm not sure to what extent this informs the court's decision at this juncture but under tennessee state law even if the claim had been raised in post conviction it would have been subject to waiver under forty thirty one of the six g because it could have been raised in the direct appeal a claim is barred by state law and post conviction if it could have been raised in the direct appeal and this i submit this is not ineffective assistance of counsel that could not i mean i argument today is that structural error may not be subject to default i got unless i missed something i don't believe that was in the briefing and so we did not address that i'm not aware of any authority to that effect because of ties into the third issue that's before the court today regarding competency where the court look to where whether a competency claim could be defaulted in the court of this court and hodges noted that for competency there is a distinction between if a claim is subject to waiver candidates can it be the fault and those are if you're looking in a direct appeal of criminal case state court federal court whatever it very well may be that a claim is not subject to waiver under some state or federal rule that would prohibit review because an objection wasn't made or something of that nature but this is haiti is under the hevia statute and procedural default belief again i haven't addressed this in the brief because it i don't believe it was raised but the same rules of procedural default apply regardless where the constitutional claim of the federal claim is structural nonstructural so don't believe that provides a basis to excuse the default and this is not a case that would fall under the miscarriage of justice you're not that familiar with this brayley case that he's now citing i'm not i'm not i have not i've not reviewed that case your honor i'm but again i can add the caveat i haven't look specifically that but my understanding walking in here today is that structural and nonstructural constitutional errors are subject to the same exhaustion requirements on the second issue this i think really comes down to how you define the client council defines it as a right to counsel where the supreme court has not provided for a forfeiture by wrongdoing exception to that what the tennessee supreme court was faced with as any state court high score addressing an issue of first impression is to determine what the law is the court look to other jurisdictions other state supreme courts look to federal case law and many jurisdictions have concluded concluded at that time that the right to counsel may be subject to forfeiture or waiver by virtue of misconduct of the defendant the different courts had used different nomenclature is czars and sided with the in for a tag the concern that your opposing counsel addressed with the tennessee supreme court's cutting in half of its quotation to remove to say well of course you can have relinquished man or abandon it is a sort of waiver and then leaving off the but other rights may not which include the right to counsel well i i'm not i'm not arguing with your honor but the case law as it's developed in this case it's the rationale is not as a sanction it's because the right is provided but the court can't carry family and my office but my question to you is if that's what's going on when you are at the point that the court is addressing you doesn't the right to counsel  a person who is engaged in that sort of impropriety cannot be abandoned by his own attorney to get out of the case but that the court must have  exam and so the court appoints someone to call me on and speak to the issue on his behalf the guardian ad litum type of the huge i mean how can he not be represented by someone who at least the court the other side of it i think i think all components of the tennessee supreme court's decision is what this court reviews if the court believes that it includes i mean the function language is not appropriate  likewise regarding the cutting off of the footnote there was the senate from a footnote in a concurring opinion of a states a bearer of a u s supreme court case i mean to the extent the court sees that  misstatement or misconstruction that informs this court's analysis but the ultimate issue is this court has to look to the tennessee supreme court decision in toto and determine is that contrary to or an unreasonable application of clearly established supreme court precedent as announced by that time the largest the next logical extension i would submit of the u s supreme court jurisprudence on this issue is that it would recognize that the right to counsel may be forfeited under some circumstances due to misconduct but they never said that now many other lower courts came to that conclusion and the u s supreme court chose not to step in to to thwart that i don't think that really inform this court's issue i think that's kind of a practical observation but this issue has percolated for decades lower courts have determined that it can be forfeited but there is no supreme court decision on that point because of that the ed put deference under twenty two fifty four d a plot i agree with your honor that the that the court has to look at all components of it but the court has to read it as a whole and step back to determine the right the conclusion by the tennessee supreme court that the right can be forfeited and the standard that it gave to support that and the facts presented does that run afoul of the deference one disagreement i have with  the petitioners argument here is it's sort of attempts to kind of turn the ed pedestrians into a sword pointing up the fact the u s supreme court has not recognized forfeiture lower courts don't have to wait for the u s supreme court to directly address the specific issue before them before they can engage in the ordinary process of constitutional construction or that's where construction when you're looking at statute of resolving case looking at how other jurisdictions have resolved the case determining to what extent that is persuasive authority to inform it i submit that's what the tennessee supreme court did ordinary judging by state's highest court to resolve it issue of constitutional law a first impression doesn't want that in fact this is as i thought this issue through if the second issue in this case now if if the state courtroom it is had not been exhausted if for some reason if they were exhausted but in the fall could be overcome the federal district court would be looking at it and need the federal district court would be bound by published precedent from this court that says  federal criminal appeals that the right can be forfeit through misconduct and it would then resolve whether the facts were presented under that doesn't that it's it's deference is provided by it but it doesn't hamstring a state supreme court in its ability to resolve the issues of first impression which is what the court was called upon to do here but i agree all parts of that decision the court has to look at and weigh in determining whether court is well aware of them that the facts there is not of the reasonable application of the facts in the court of the supreme court's resolution of the climb and that one last question yes i can see in the record where the trial judge warned mr carruthers of you know the dangers and disadvantages of proceeding process so he might have to proceed pro se didn't expressly explicitly warn him of the dangers and they're not construing a waiver based upon prior notice being given and then conduct happening that really does appear more to be forfeiture the tennessee supreme court resolved it that way but it obviously gave those two alternative conclusions that both either implicit waiver or forfeiture would support it and i think certainly the forfeiture side of that even if there is some issue regarding the admonitions and if he was not sufficiently informed trial but representing yourself has a different standard of evidence that is there anywhere in this record a determination that he was willing to represent himself i believe the only competency claim the only to determination was done before these proceedings which was the one we just whenever there's a question of competency and there's a referral for an assessment i don't believe there was a defense counsel retained an expert to to study that don't necessarily call into question his captaincy i mean it was a great great just conduct but but it i don't see it is really raising a question of competency such that the court that is something the court should who i cannot even find here is his test or explanation in the record ok and then after that you have  car he said he was not competent to do so but that that's the extent to your know i believe i believe so and i think though that i know my grammar and i believe the other one was also on the post conviction review that's when those assessments were people to at least represent him in addressing his improprieties so that the court is apprised of whether there is actual a mental actually a mental they they begin to question their ability to represent but and like in this case mr massey was very clear he didn't want to prejudice his right in any way which is why he was very forthright with the court and you but you also i think you have to delicately try to work with the petitioner determine what extent if any information can and should be shared with the court because again you don't want to violating confidences because you're still representing that person i think something to represent his interest or something like a guardian ad litum or the best represent the best interest the trial court has to do that there's nothing really here that showed a need for that this was greeters behavior that pretty apparent was in order to thwart the criminal process he had continually engaged in this behavior and mr massey just was bearing the brunt of it the worst brunt of back and forth changing of positions i think mr massey was in a very tough spot judge daley was in a very tough spot but the issue on the second issue was ultimately whether the ballots at the difference and i submit that it does not in the facts i mean equitably substantial claims must be heard somewhere and there are or a number of fun little problems reflected on the face of the record relating to structural  louisiana notes when that happens the record is very difficult to parse is particularly difficult to parse when there is no attorney present to a den of five the procedures and the issues that are presented which is the heart of the problem my co counsel corrected me i won't tell you the name he called me judge judge rogers but he did say well of course sutton vs carpenter said that martinez applies claims in tennessee and to right to counsel issues which need not be raised on direct appeal and b and should not because doing so is fraught with peril here with regard to the ineffective assistance o counsel claim is the extent that counsel for the new trial motion was also counsel on direct appeal would have been conflict did from raising a drop issue in the new trial motion on direct appeal  also reflected in the record in the following circumstance massey offered to go back despite the problem and after that was time for some preparation behaviors which were never duplicated this at the trial court level there was never any judicial determination that it was common and i suppose conviction court said in agonizing about the mental health issues here he said perfunctory examination he had been post conviction defender in metro and there were clearly problems all over the place with regard to the record showing mental health problems so is the position is is that the right to counsel couldn't be more important particularly at a critical stage it was not provided that the questions in a pain now only underscored that and that it's fatally inspected the entire proceedings that followed and to label it and action based on his behavior based on the record here is problematic at best without a hearing in which he was represented by counsel to explore those issues have no nothing further to say ok mr passing the thank you very much for your argument this and there being nothing