[00:00:15] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
Jeffrey Connor on behalf of the appellant.

[00:00:21] Speaker 04:
This court in Deer versus Cullen quoted the Supreme Court of the United States decision from Godinez versus Moran noting that competence has a modest aim.

[00:00:31] Speaker 04:
It seeks to ensure that a defendant has the capacity to understand the proceedings and to assist counsel.

[00:00:37] Speaker 04:
In Godinez, the Supreme Court clearly established that competence to plead guilty or the standard for assessing that is the same standard as the standard for assessing competence to stand trial.

[00:00:50] Speaker 04:
And that standard is whether or not focuses on the defendant's present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against them.

[00:01:06] Speaker 03:
In this case was there ever a professional opinion that Mr. Davis was incompetent?

[00:01:15] Speaker 04:
There was not.

[00:01:16] Speaker 04:
And so that actually goes directly to the point that I want to focus on with the court this morning.

[00:01:22] Speaker 04:
I think we could have what I would think is probably a more academic exercise about the application of EDPA and the limitations on evidentiary admissibility of new evidence that wasn't developed in state court in federal habeas proceedings.

[00:01:39] Speaker 04:
But the thing I think that troubles me the most about this case is that the only report that we have from Dr. Jones-Forrester begins by acknowledging that that report was not intended to address the matter of competency.

[00:01:52] Speaker 04:
And then in that introduction went on to note that Mr. Davis meets the standard for competency under Dusky.

[00:02:00] Speaker 04:
And so I'm very troubled by the ruling in this case when there has never been any professional that has deemed him to be incompetent.

[00:02:12] Speaker 00:
Now, what I think the district- Dr. Jones, Forrester's evaluation provides some evidence, if not strong evidence, of incompetency.

[00:02:21] Speaker 00:
I mean, Mr. Davis has borderline intellectual disability, has IQs in the 80s that remained true until 2017, and doesn't that

[00:02:31] Speaker 00:
make it at least somewhat probable that he also had a disability in 2004?

[00:02:37] Speaker 04:
So having a disability doesn't make you incompetent.

[00:02:42] Speaker 04:
I think that's the importance of what the Supreme Court was saying in Godinez versus Moran, is that there is not a heightened standard of competency to plead guilty.

[00:02:53] Speaker 04:
And so it's just the bare minimum standard of competency to stand trial.

[00:03:00] Speaker 04:
defendants can have all sorts of cognitive or psychiatric issues that may play a role in their communications with counsel, but it doesn't render them incompetent.

[00:03:15] Speaker 04:
And so the threshold for competency is very low.

[00:03:19] Speaker 04:
And I think that's the struggle here is that

[00:03:24] Speaker 04:
The district court here, I think, tries to draw a through line between the Sagmore records from Mr. Davis' childhood in the early 1980s to 2017.

[00:03:38] Speaker 04:
And the trial, or trial, not trial here, but the entry of the guilty plea was in 2003, 2004 timeframe.

[00:03:48] Speaker 04:
to try to draw a through line to show that he was incompetent at the time that he entered his plea.

[00:03:53] Speaker 04:
But I think there's two things.

[00:03:56] Speaker 04:
One, you've got the Dr. Jones's Forrester report that suggests that he is competent, that he does meet the minimum standard for competence under Dusky.

[00:04:08] Speaker 04:
The other thing is that if you look at the state court record, particularly at

[00:04:20] Speaker 04:
page 557, so that's in volume 3 of the excerpts of record.

[00:04:24] Speaker 04:
That's the point where the state district court judge was addressing the Sagamore records.

[00:04:31] Speaker 04:
And the trial judge or the district court judge there noted that there was nothing in those records that would have even come close to demonstrating the sort of intellectual

[00:04:48] Speaker 04:
deficiency in cognitive functioning that would come close to, I think there she was really looking at using it as an insanity to support an insanity defense.

[00:05:01] Speaker 04:
But I think that's still sort of the same, I mean, I don't want to

[00:05:07] Speaker 04:
confused the insanity defense and competency to stand trial.

[00:05:12] Speaker 04:
But still, she's recognizing there that there was nothing in those records that demonstrated anything close to him that counsel could have used to present an insanity defense.

[00:05:24] Speaker 04:
And I think that's informative here as well, particularly when looking, comparing this case to Deer versus Cullen where the court there acknowledged that

[00:05:35] Speaker 04:
There'd been no showing of any sort of like psychosis or delusions or anything like that.

[00:05:43] Speaker 04:
And I think the record is the same here.

[00:05:46] Speaker 04:
At volume four excerpts of record 636, this is from the Sagmore records from New York, no evidence of delusions or hallucinations.

[00:05:56] Speaker 04:
Four excerpts of record 637, no signs of psychotic process.

[00:06:01] Speaker 04:
Four ER 642, no signs of delusions or hallucinations.

[00:06:07] Speaker 04:
So there's no sign of any psychiatric condition that would have interfered with his ability to communicate with counsel.

[00:06:15] Speaker 04:
Now, of course, we do have a situation here where his IQ is a 72.

[00:06:26] Speaker 04:
by itself would not even be enough to establish intellectual disability under the standards for defining intellectual disability.

[00:06:36] Speaker 04:
An IQ score is the first component of that process.

[00:06:42] Speaker 04:
But the IQ score alone isn't enough to establish intellectual disability.

[00:06:49] Speaker 04:
And then the district court here in a footnote also recognized that a finding of intellectual disability by itself would not be enough to establish incompetence.

[00:07:00] Speaker 04:
And so I think there's just a lack of evidence in the record to support the district court's determination here that at the time of the entry of the guilty plea,

[00:07:11] Speaker 04:
that it was both objectively unreasonable for the state courts to determine that he was competent.

[00:07:19] Speaker 04:
State court competency determinations are entitled to a presumption of correctness.

[00:07:25] Speaker 04:
But even more so, if you look at the district court Stenovo analysis that considers the Dr. Jones-Forrester's report that's from outside the state court record and couldn't be considered in the EDPA analysis,

[00:07:40] Speaker 04:
It doesn't support the conclusion that he's incompetent.

[00:07:47] Speaker 01:
Can I ask you a procedural question about the second claim, the ineffective assistance claim?

[00:07:53] Speaker 01:
You've argued that that's not properly before us because he didn't seek a certificate of appealability.

[00:07:58] Speaker 01:
But why did he need a COA on that claim?

[00:08:02] Speaker 01:
He's not trying to appeal anything.

[00:08:03] Speaker 01:
He's just presenting it as an alternative ground for firmance.

[00:08:07] Speaker 04:
I'm sorry.

[00:08:08] Speaker 04:
I'm sorry.

[00:08:10] Speaker 04:
I'm sorry.

[00:08:11] Speaker 04:
I'm sorry.

[00:08:12] Speaker 04:
I'm sorry.

[00:08:16] Speaker 04:
And I was like, well, I'm not quite sure about that.

[00:08:19] Speaker 04:
But I think the answer to that is twofold.

[00:08:22] Speaker 04:
Looking at both the judgment and the district court's order, there are some particular things about the relief that the district court ordered in this case that is different than what the relief that he would get under ground 2.

[00:08:34] Speaker 04:
And so it is not really just asking for affirmance of the judgment.

[00:08:37] Speaker 04:
The relief that he would get would potentially be different.

[00:08:42] Speaker 04:
that supports the actual reasoning of why he would have needed to file a cross appeal and obtain a certificate of appealability with respect to those.

[00:08:49] Speaker 04:
So if you look at the judgment at excerpts of record two, it says it is further ordered that the petition for writ of habeas corpus as amended is granted as to ground one.

[00:09:01] Speaker 04:
It is further ordered that to the extent required, Davis is denied a certificate of appealability with respect to ground 2.

[00:09:08] Speaker 04:
So that's in the judgment.

[00:09:09] Speaker 04:
And so if he just wants affirmance of the judgment, ground 2 doesn't affirm what is in the judgment.

[00:09:18] Speaker 04:
But also, I think that may seem a little formalistic.

[00:09:22] Speaker 04:
But if you look at the district court's order

[00:09:30] Speaker 04:
page twenty four of the excerpts of record the relief that was granted says within one hundred and twenty days of the latter of of the conclusion of cd within one hundred twenty days of the latter of one the conclusion of any proceeding seeking appellate or search or review of this court's judgment if affirmed

[00:09:47] Speaker 04:
or two, the expiration for seeking such appellate review, Davis shall be released from all custody and or other restraints, including parole or other supervision, unless subject to the competency issues addressed within this order, the state files a written election in this matter of its intention to try Davis and thereafter commences jury selection.

[00:10:10] Speaker 04:
I think if he succeeds on ground two on the ineffective assistance of counsel claim, that

[00:10:16] Speaker 04:
subject to competency issues addressed within this order goes away.

[00:10:20] Speaker 04:
I think that the intent behind that language is that if this is remanded to state court and Mr. Davis was determined to be incompetent to stand trial, this conditional writ would not require his release.

[00:10:36] Speaker 04:
I don't think that's the case for the ineffective assistance of counsel claim that's raised in ground two.

[00:10:40] Speaker 04:
So I do think the relief that's awarded underground one is different.

[00:10:44] Speaker 04:
And so for them to get to ground two, they did need to file a cross appeal.

[00:10:50] Speaker 04:
Unless the court has any further questions, I'll reserve the rest of my time.

[00:10:54] Speaker 03:
All right, thank you, Council.

[00:10:55] Speaker 04:
Thank you.

[00:11:11] Speaker 03:
Good morning, counsel.

[00:11:12] Speaker 02:
Good morning, your honors.

[00:11:13] Speaker 02:
May it please the court.

[00:11:14] Speaker 02:
My name is Amelia Bizarro, and I represent the appellee, James Davis.

[00:11:18] Speaker 02:
Since he was a child, James has suffered from borderline intellectual disability, cognitive deficits, and mental illness.

[00:11:26] Speaker 02:
This case is about whether his plea was constitutionally sound.

[00:11:30] Speaker 00:
But what do you say to the argument that your friend made on the other side, that those things are not benchmarks for determining competency?

[00:11:38] Speaker 02:
The whether plea is constitutional is two parts.

[00:11:41] Speaker 02:
Competency is a threshold determination.

[00:11:43] Speaker 02:
But even if James is competent, as the warden has argued, then the next question is whether or not he entered a knowing voluntarily intelligent plea or whether it was the result of ineffective assistance of counsel.

[00:11:55] Speaker 02:
The lower court stopped its inquiry at competence because it

[00:11:59] Speaker 02:
It stopped at that threshold question.

[00:12:01] Speaker 02:
The court determined he likely wasn't competent at the time he entered the plea.

[00:12:05] Speaker 02:
But for the government to say that he was competent but then not address the actual constitutional claim is a problem.

[00:12:12] Speaker 00:
Well, let's stick with this competency issue for a moment.

[00:12:16] Speaker 00:
I think the council pointed to specific places in the record that talk about that Mr. Davis did not suffer from psychosis or delusions.

[00:12:26] Speaker 00:
So even if we can see from his prior records at the institution that he had a low IQ and may have had some developmental disabilities, how still does that rise to the level of incompetency determination, as the district court found?

[00:12:44] Speaker 02:
The lower court had an evidentiary hearing, and that order, I think, is relevant here.

[00:12:48] Speaker 02:
It made several findings of fact regarding James's ability to process information and his mental illness.

[00:12:55] Speaker 02:
And what the court found was that confluence of things, his intellectual disability, his mental illness, and his cognitive defects, specifically which relate to his ability to make decisions in this case with a reasonable degree of rational understanding,

[00:13:10] Speaker 02:
that he was able to enter into the plea.

[00:13:21] Speaker 00:
And so, I mean, sitting where we are, how is this not simply, you know, a mixed question where a reasonable

[00:13:37] Speaker 00:
person could reach either conclusion, which then requires us to defer to the state court finding.

[00:13:46] Speaker 02:
I don't think this court ever defers to the state court finding, in our opinion, is a mixed question of law and fact for this court because it is evaluating the grant of a habeas relief.

[00:13:56] Speaker 02:
But the lower court's decision wasn't entitled to deference at the outset, and the district court found that to be the case.

[00:14:03] Speaker 02:
It concluded that the Nevada Supreme Court's decision was based on an unreasonable determination of the facts.

[00:14:08] Speaker 02:
and that allowed it to consider all of the evidence.

[00:14:11] Speaker 00:
But how is an unreasonable determination of the facts if a reasonable person can reach either result?

[00:14:17] Speaker 00:
I mean, isn't that the test?

[00:14:20] Speaker 00:
If, in fact, two people could have differing opinions about this, that's precisely the kind of question that would not constitute an unreasonable determination of facts.

[00:14:36] Speaker 02:
I respectfully disagree, Your Honor.

[00:14:38] Speaker 02:
What the lower court said was that there was nothing in the Sagamore records that would have changed the outcome.

[00:14:44] Speaker 02:
And what the district court said was it looked at the contents of those records, which isn't reflected in the Nevada Supreme Court decision.

[00:14:52] Speaker 02:
It just simply said nothing in here would have mattered.

[00:14:55] Speaker 02:
But it would have mattered because those records detail his limited ability to process information conceptually, his troubles with auditory modality,

[00:15:05] Speaker 02:
And so I think that there is no deference here.

[00:15:09] Speaker 02:
The court evaluates it de novo.

[00:15:13] Speaker 02:
And this court can't affirm for any reason it wishes.

[00:15:17] Speaker 02:
It can't affirm as the concluding as the lower court did that he was incompetent.

[00:15:22] Speaker 02:
But if this court doesn't find that he's incompetent, if it decides that differently, then it still must look to whether or not the plea was knowing voluntarily until it's... Mostly look to that if the district court didn't.

[00:15:35] Speaker 03:
I believe so, Your Honor.

[00:15:36] Speaker 03:
What case says that we have to address an issue that was not addressed by the district court?

[00:15:42] Speaker 02:
Well, this court is evaluating the grant of habeas relief de novo.

[00:15:46] Speaker 03:
But could you give me a case that says we must address an issue that the district court did not address?

[00:15:54] Speaker 02:
not off the top of my head, Your Honor, but Godinez addresses this issue directly.

[00:15:58] Speaker 02:
It talks about a plea being both competency and knowing voluntarily, intelligently made that for a plea to be valid, both parts must exist.

[00:16:09] Speaker 02:
So if this court declines to affirm on the grounds of competency, that still leaves open.

[00:16:16] Speaker 02:
The claim is still before this court.

[00:16:18] Speaker 03:
Open, but that doesn't mean that we must address it.

[00:16:21] Speaker 03:
could elect to address it on the novel review.

[00:16:24] Speaker 03:
But I was asking you to support your statement that we must address the issue.

[00:16:31] Speaker 02:
I defer to your honor.

[00:16:32] Speaker 02:
I think that it could, in that situation, then remand for the district court to consider the constitutionality of the claim.

[00:16:40] Speaker 02:
I also dispute the warden's position that the ineffective assistance of counsel claim is not before this court.

[00:16:48] Speaker 02:
As your honor asked, there is a US Supreme Court case directly on point.

[00:16:51] Speaker 02:
That's Jennings versus Stevens.

[00:16:54] Speaker 02:
This was an argument made for the first time in the reply brief.

[00:16:57] Speaker 02:
But that case squarely says that

[00:17:00] Speaker 02:
a petitioner can argue.

[00:17:02] Speaker 02:
In that case, the petitioner won on two claims and lost on the third.

[00:17:06] Speaker 02:
It presented all three claims to the Supreme Court, or I'm sorry, to the Fifth Circuit.

[00:17:11] Speaker 02:
They reversed on two and said they didn't have jurisdiction on the third.

[00:17:16] Speaker 02:
The U.S.

[00:17:16] Speaker 02:
Supreme Court said they did.

[00:17:18] Speaker 02:
The appellee who doesn't cross appeal can urge affirmance on any ground but cannot seek greater relief.

[00:17:23] Speaker 02:
We're not seeking greater relief.

[00:17:25] Speaker 01:
But the point that counsel made is that the order that you got orders a retrial subject to competency, which seems to contemplate that if they go back and the court says, no, OK, we'll look at it now, he is competent, then they're done, which is different and narrower relief from what you would get if you prevailed on the IAC claim, isn't it?

[00:17:48] Speaker 02:
I think pragmatically what would happen is that the case will go back to the state court for proceedings and the state court could elect to revisit competency and have a competency hearing that we've never, that has never happened in this case yet before and then determine competency.

[00:18:05] Speaker 02:
If he is incompetent, then he's like every other similarly situated defendant who can't go forward.

[00:18:11] Speaker 02:
So I don't think the relief is anything different here.

[00:18:14] Speaker 01:
But if he's competent,

[00:18:16] Speaker 01:
the order that you have from the district court right now, then they're done, right?

[00:18:24] Speaker 01:
I'm sorry, then he's... If we were to just affirm the order that the district court entered, it seems to contemplate that if the state finds him to be competent, or finds that he was competent, I guess, then the conviction can stand.

[00:18:43] Speaker 01:
Is that how you read it?

[00:18:44] Speaker 02:
that's not how I read it, Your Honor.

[00:18:45] Speaker 02:
If you affirm and he goes back to state court proceedings and the state court finds him competent, then he has available to him the options he had before him to enter a plea.

[00:18:56] Speaker 02:
He gets the new trial.

[00:18:57] Speaker 02:
He gets the new proceedings.

[00:18:59] Speaker 02:
Affirmancy would vacate the plea.

[00:19:01] Speaker 02:
It puts him back in the position he was in before he entered the plea.

[00:19:05] Speaker 02:
So I think all of those things are available

[00:19:07] Speaker 02:
to him, it wouldn't sort of cut the state's legs out from under them and prevent them from retrying him if he were found competent.

[00:19:19] Speaker 02:
The plea colloquy in this case was unique based on what had happened the day before.

[00:19:27] Speaker 02:
James entered his plea on the day that it was scheduled for trial, which was March 2, 2004.

[00:19:32] Speaker 02:
And the day before, he and his attorney, Howard Brooks, got into such a loud shouting match in the courtroom that the court staff didn't allow her to enter the room that day.

[00:19:44] Speaker 02:
the case in February.

[00:19:45] Speaker 02:
And that was until everyone calmed down by this time the 2 had had an extremely antagonistic and distrustful relationship.

[00:19:52] Speaker 02:
Child Council testified that the relationship began deteriorating the first week of February.

[00:19:58] Speaker 02:
Mister Brooks wasn't able to do a lot of work on the case in February because that month he also tried a capital

[00:20:05] Speaker 01:
But trial counsel also said that when he discussed the case with him and thought he was able to do that competently, an appellate counsel said the same thing.

[00:20:13] Speaker 01:
So this is really just going back to the point of Judge Desai's question.

[00:20:18] Speaker 01:
I mean, there's definitely evidence that supports your view, but there seems to be some evidence that would support a contrary view.

[00:20:26] Speaker 01:
And if reasonable people could, if there's evidence supporting both sides, how can we say that the state court's determination was unreasonable?

[00:20:36] Speaker 02:
The state court's determination was unreasonable on three ways.

[00:20:40] Speaker 02:
First, the unreasonable determination of the facts.

[00:20:43] Speaker 02:
But ignoring that, there's two other things.

[00:20:45] Speaker 02:
Second, it didn't address the claim before whether the plea was knowing voluntarily, intelligently entered based on these confluence events.

[00:20:53] Speaker 02:
It looked at a much narrower question of whether or not James had signed the plea agreement.

[00:20:57] Speaker 02:
Also, on the ineffective assistance of counsel claim, in my view, they used the wrong test there.

[00:21:02] Speaker 02:
It was outcome determinative and whether the outcome would have been different as opposed to reasonable probability of a different role.

[00:21:08] Speaker 02:
So any under of those three theories, there is no deference to the Nevada Supreme Court decision in my... Your claim to the ineffective assistance of counsel claim?

[00:21:18] Speaker 02:
Yes, Your Honor.

[00:21:18] Speaker 03:
That was not certified.

[00:21:21] Speaker 02:
No, that's correct, Your Honor.

[00:21:22] Speaker 03:
And so in order for us to reach that,

[00:21:24] Speaker 03:
issue, we would have to expand the certificate of appealability, correct?

[00:21:29] Speaker 02:
No, Your Honor, because it is available to the court under Jennings versus Stevens.

[00:21:35] Speaker 02:
And this is, again, something that was raised for the first time in the reply brief that didn't respond to if the court would like me.

[00:21:40] Speaker 03:
But the certificate of appealability issue is one that we impose and that the law imposes.

[00:21:48] Speaker 03:
So whether or not they raised it, the issue is whether or not

[00:21:53] Speaker 03:
that issue is properly before us if the certificate of appealability has not been expanded, and we did not elect to do that, or the court did not elect to do that.

[00:22:03] Speaker 03:
So I'm not sure that that issue is before us for resolution.

[00:22:08] Speaker 02:
The relief that the court granted below was the grant of the writ.

[00:22:13] Speaker 02:
On claim one, not on claim two.

[00:22:17] Speaker 02:
That's correct, Your Honor.

[00:22:18] Speaker 02:
But again, in Jennings v. Stephen, it is on all fours.

[00:22:22] Speaker 02:
In that case, there was a grant on two claims and not on one.

[00:22:25] Speaker 02:
All three claims were before the circuit.

[00:22:29] Speaker 03:
How were they before the circuit?

[00:22:31] Speaker 03:
Was there a certificate of appealability on all three of them?

[00:22:35] Speaker 02:
There was not, Your Honor.

[00:22:36] Speaker 03:
How long before the circuit, if the COA hadn't been expanded?

[00:22:39] Speaker 02:
Because the petitioner simply argued, as this Court is available to do, that it can affirm on any ground that it wishes.

[00:22:47] Speaker 02:
And so that third claim was an additional ground.

[00:22:50] Speaker 03:
It can't affirm on any ground that we wish.

[00:22:53] Speaker 03:
It has to be supported.

[00:22:54] Speaker 03:
the record and by the law.

[00:22:56] Speaker 02:
Of course, Your Honor.

[00:22:57] Speaker 02:
And what the Fifth Circuit did was, as Your Honor is suggesting, is it said that we can't address that claim.

[00:23:04] Speaker 02:
We can only address the two upon which there was the appeal.

[00:23:08] Speaker 02:
And the United States Supreme Court

[00:23:10] Speaker 02:
to the court.

[00:23:11] Speaker 02:
And it said it reversed and it said it and I the site is 574 U.S.

[00:23:16] Speaker 02:
271.

[00:23:17] Speaker 02:
But it said you can't see greater relief and because we're not seeking greater relief.

[00:23:22] Speaker 02:
We're we're seeking firmance of the Rick Grant.

[00:23:25] Speaker 02:
This court can consider the ineffective assistance of trial council claim.

[00:23:29] Speaker 02:
And that claim argues that Mister Brooks was

[00:23:38] Speaker 02:
He knew between the time of the arraignment and the preliminary hearing that James had been in custody in a mental institution because he had spoken to Mr. Davis's father.

[00:23:47] Speaker 02:
At that time... Is the Jennings case in your brief?

[00:23:50] Speaker 02:
It's not, Your Honor, because this was an argument made for the first time in the reply brief.

[00:23:54] Speaker 02:
But I am happy to submit a 29-J letter if the court would... Well, thank you.

[00:23:58] Speaker 03:
Not for me.

[00:23:59] Speaker 03:
I can find the case.

[00:24:00] Speaker 02:
Okay.

[00:24:03] Speaker 02:
With that, we're asking the court to affirm here this plea was

[00:24:07] Speaker 02:
the court.

[00:24:08] Speaker 02:
It also considers Mr. Brooks as a person who has been.

[00:24:09] Speaker 02:
Conducted under extremely unique and volatile circumstances and this court looks at the totality of those circumstances from what happened the day

[00:24:21] Speaker 02:
that he should have gotten those records.

[00:24:24] Speaker 02:
If he had gotten those records, as our brief argues, it would have informed every decision that came later, including James's ability to enter a knowing, intelligent, and voluntary plea.

[00:24:34] Speaker 02:
And with that, I ask this Court to affirm.

[00:24:35] Speaker 03:
What is the issue that you say is argued for the first time in the reply brief?

[00:24:40] Speaker 02:
In the reply brief, they say, Your Honor's original question was that the claim to is not before this Court, that by not cross-appealing, we waived it.

[00:24:50] Speaker 03:
Well, I don't think maybe not

[00:24:51] Speaker 03:
by not cross-appealing, but not having it certified, in my view, doesn't make it before the court.

[00:24:59] Speaker 03:
If it's not in the COA.

[00:25:02] Speaker 02:
Then that has never been briefed, Your Honor.

[00:25:04] Speaker 02:
The argument that they make in the reply brief is that we had to cross-appeal for it to be before.

[00:25:08] Speaker 03:
I understand that argument, but from the court's perspective, generally, if the certificate of appealability is not expanded, the argument is not

[00:25:18] Speaker 03:
It's not addressed by the other party, and it's not properly before us.

[00:25:21] Speaker 02:
It's my opinion that it is addressed by the other party.

[00:25:23] Speaker 02:
In their opening brief, they do talk about Mr. Brooks's effectiveness.

[00:25:28] Speaker 02:
And I also fully brief it.

[00:25:31] Speaker 02:
In my brief, there is a reply brief.

[00:25:33] Speaker 02:
So I think the matter is all the information that the court would need would be before it if it does, in fact, need to expand the COA to consider it, although it's our position that it does not need to do that.

[00:25:43] Speaker 02:
Thank you.

[00:25:44] Speaker 02:
Thank you.

[00:25:57] Speaker 04:
Just a few quick points, Your Honor.

[00:25:58] Speaker 04:
First, I'll start with the Jennings versus Stevens issue.

[00:26:01] Speaker 04:
And I want to be very clear that I do agree with my friend on the other side's reading of Jennings versus Stevens.

[00:26:08] Speaker 04:
That case does say that if it is appropriate to raise something as purely as an affirmance of the judgment, you can raise another claim without having to satisfy the certificate of appealability requirement.

[00:26:23] Speaker 03:
So how does that affect us in this case?

[00:26:27] Speaker 04:
So I think that it's important and I think to get to what Judge Miller was asking about is that the order that grants the writ is a conditional writ that gives the state a certain amount of time to comply with the conditions in the writ.

[00:26:43] Speaker 04:
And I think there's some specific language in here that says subject to the competency issues addressed within this order.

[00:26:51] Speaker 04:
And I think the idea there is that if this case returns to state court and is determined that Mr. Davis is incompetent to stand trial, that the state wouldn't have to satisfy the conditions to retry him within that certain period of time and continue to hold him in custody.

[00:27:12] Speaker 03:
Okay, so what's your answer to the question as to whether or not Jenin's mandates that we address the ineffective assistance counsel claim?

[00:27:21] Speaker 03:
Yes or no?

[00:27:21] Speaker 03:
Does it mandate that we address it or no?

[00:27:24] Speaker 03:
No.

[00:27:24] Speaker 03:
And why not?

[00:27:26] Speaker 04:
It doesn't mandate it in the sense that the court

[00:27:32] Speaker 04:
has discretion to consider an alternative ground for affirming the judgment if it thinks there's some other reason that's, as Your Honor pointed out, is supported by the law and the record.

[00:27:43] Speaker 03:
I just said that the case said that you don't need a certificate of appealability.

[00:27:47] Speaker 03:
That is correct.

[00:27:49] Speaker 03:
To do that.

[00:27:49] Speaker 03:
So under the facts of this case where we don't have a certificate of appealability, does Jennings nevertheless say we as a court must address that issue?

[00:28:00] Speaker 03:
In your view?

[00:28:01] Speaker 04:
No.

[00:28:02] Speaker 04:
I think what I'm trying to say here, what Jennings does establish is that if there are three, what happened to Jennings was the petitioner raised three ineffective assistance of counsel claims that challenged counsel's performance during the penalty phase of a capital trial.

[00:28:18] Speaker 04:
The petitioner prevailed on two of the three claims in the district court and the state appealed.

[00:28:23] Speaker 04:
On appeal, the petitioner raised all three claims, and the Fifth Circuit said, we're reversing on the two claims that were granted, and we can't consider the other one because you didn't cross-appeal, you didn't get a certificate of appealability.

[00:28:34] Speaker 03:
Those are all ineffective assistance of counsel claim.

[00:28:36] Speaker 03:
Here we have two different claims, a competency claim and an ineffective assistance of a counsel claim.

[00:28:41] Speaker 03:
And so I'm not sure that same rationale applies when you have two discrete claims as opposed to one claim and three arguments in support of that claim.

[00:28:51] Speaker 04:
correct with the exception that it really does depend upon how the judgment and the relief that is granted is worded.

[00:28:58] Speaker 04:
Because if you could raise a separate claim, and if it results in the same relief, that's just affirming the judgment.

[00:29:05] Speaker 04:
But that's not what would happen here based upon the way the district court wrote its order.

[00:29:10] Speaker 04:
I'd also just like to quickly address the parts about ground one and getting to the knowing, intelligent, voluntary piece of that claim.

[00:29:21] Speaker 03:
All right.

[00:29:22] Speaker 04:
Godinez is very specific in the sense that there's not a different competency standard for determining the voluntariness of a plea.

[00:29:32] Speaker 04:
So Godinez rejects the idea that you put extra gloss on whether or not a plea is knowing, intelligent, and voluntary under Boykin and Brady for determining whether or not under the totality of the circumstances, the record establishes that there was a knowing, intelligent, voluntary plea.

[00:29:52] Speaker 04:
guilty pleas are accepted or presumed to be valid and they have to show under the totality of circumstances that it wasn't.

[00:29:58] Speaker 04:
But you don't put extra gloss on that analysis that looks at the particular

[00:30:05] Speaker 04:
mental capacity of the defendant.

[00:30:07] Speaker 04:
That question is resolved through the competency inquiry under Godinez.

[00:30:12] Speaker 04:
That's part of the inquiry.

[00:30:14] Speaker 04:
But once that box is checked, then you go on to look at is this voluntary?

[00:30:19] Speaker 04:
Well, there was no coercion.

[00:30:23] Speaker 04:
Was the defendant adequately advised of the rights he was waiving?

[00:30:27] Speaker 04:
Was he adequately advised of the consequences of the plea?

[00:30:30] Speaker 04:
All those things.

[00:30:31] Speaker 04:
So I see I'm out of time.

[00:30:33] Speaker 03:
Thank you.

[00:30:33] Speaker 04:
Just ask the court reverse.

[00:30:34] Speaker 04:
Thank you.

[00:30:35] Speaker 03:
Thank you to both counsels.

[00:30:36] Speaker 03:
The case just argued is submitted for decision by the court.

[00:30:39] Speaker 03:
The next case on calendar for argument is Patterson versus attorney general.