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Case number 23-3017, United States of America, B. Kyrie Fields, also known as Kyrie Fields, also known as Kyrie Fields Appellant.

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Mr. Sirby for the appellant, and Mr. Goodhand for the appellant.

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May it please the court.

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Bruce Sirby, CJA counsel, appearing for Appellant Kyrie Fields.

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Your honors, I'd like to reserve two of my allocated 10 minutes for rebuttal.

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I'd also like to make a brief dedication to my oral argument to Mark Roshan, a giant of the public defender community, who along with his then partner, Gary Coleman, hired me out of college as a defense investigator and inspired me to become a lawyer.

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And he passed away tragically a few weeks ago and is going to be his funeral service this weekend.

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Just want to tell you where I'm going.

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I want to first address the judge's lack of consideration and mental health raised by the defense.

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And second, I want to talk about the ineffective assistance of counsel for counsel's failure to work up appropriately the mental health issue that they had flagged by working with an expert.

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And it's key here that the district court varied upwards in its final sentence from the guidelines range that had already taken into consideration many factors that the court explained as part of its sentence.

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First, let me

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talk about Mr. Fields' argument that a district judge must show more sign of his or her consideration of a defense sentencing argument, unless perhaps the court gave out a guideline sentence.

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Here, there was a prejudice to the substantial rights of Mr. Fields.

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There's a reasonable likelihood that a sentence would have issued differently, but for the error of the judge and not considering the issue of mental health

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The cases of this circuit and the Supreme Court show how mental health is important to several different issues at sentencing, history and characteristics of the offender, the need to provide defendant with medical care versus extra incarceration, whether mental health contributed to the commission of the offense.

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Suppose it did.

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Suppose that mental health contributed to the defense, then there would be a potential downward departure.

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Do you think there should have been a downward departure for, say, Ted Bundy?

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Because he had a screw loose when he was committing all his murders?

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Well, Your Honor, the guidelines do provide for this argument.

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Now, in Ted Bundy's case, I might differ.

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But the guidelines which apply to all defendants... They say considerate.

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They don't say downward departure.

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Well, Your Honor, I do think that the type of mental illness that clouds someone's judgment and leads to them potentially... Makes them more dangerous, doesn't it?

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and more likely to commit an offense once they're released.

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That's not a reason for downward departure.

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That's a reason for upward departure.

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Your Honor, that goes to the next factor, which is that a criminal history can over-represent the seriousness of a prior offense that is taken into consideration by the court.

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If there's mental health issues, if you treat mental health, you can mitigate those types of criminal history facts in someone's background that might otherwise lead to a harsher sentence and a judge's opinion.

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He had been treated, examined, and given medication, I think, on two different occasions.

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And then he just stopped taking the medication.

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So what then is the role?

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mental health of a person is not sticking to treatment plans.

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Your honor, failure to comply with medication regimens is something that we all know about.

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I think the court knows that part of the struggle of mental health treatment is dealing with anybody

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anybody from any type of background who fails to take their treatment seriously.

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Now, that doesn't mean that you give up on that person.

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But then what was the district court supposed to do here under the guidelines or the sources you're relying on?

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does, as Judge Randolph has suggested, shortening the sentence doesn't seem to address the mental health issues at all.

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And unless you're going to have sort of someone referred to a mental health treatment within the Bureau of Prisons, but that's not a shorter sentence.

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That's a different sentence as in where it's recommended that you be incarcerated.

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But I'm not sure that's the same thing as the downward variance issue here.

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I didn't see you arguing that he should have been sent to a federal facility where he could receive mental health.

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That's very much where I was going, Your Honor.

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Absolutely.

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You not only not put the person in longer so that they develop more aggression and more dangerousness to the community and to people within prison.

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You give them an appropriate level of incarceration and then put them out in targeted mental health treatment, exactly as you were suggesting.

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That's very much where I would have taken this case if I were the defense attorney.

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I would have had... The district court does require, as a condition of supervised release, that he undergo mental health treatment, mandatory as a part of his supervised conditions.

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So I guess that indicates that the judge did get the message from the PSR about mental health treatment and did, just as you said, provided at the end of the incarcerated term for mental health treatment.

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I think that's a boilerplate conclusion of that language, Your Honor.

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Maybe boilerplate for somebody, but if he really needs it, then it is an enforceable term.

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I think that if the district court is taking- It's enforceable, right?

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It's enforceable, but it's not robust, Your Honor.

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What I would have argued for is a more robust provision.

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And it could have been taking place while the defendant is still in the Bureau of Prisons.

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You don't have to have black or white in terms of no mental health treatment until you get out.

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There can be different programs within the Bureau of Prisons.

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But that's not a shorter sentence.

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I mean, the district court judge could have said you need a long sentence because you are a danger to the community and you don't stay on medication when it's given to you.

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But I'll recommend that they house you at X facility.

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But that doesn't change the argument about how long sentence that doesn't show error in the length of the sentence.

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Again, I think if you point to what the experts can say about the effect of

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uh, increased incarceration upon someone, you are making the problem worse by responding to the dangerousness issues that Judge Randolph, you know, correctly wants, wants me to address by saying that's got to mean a longer sentence because that, that can actually make the whole dangerous situation, dangerousness situation much worse.

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And this is just one of the issues at sentencing that mental health impacted.

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There were, as I pointed out, others.

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There's the looking back on past behavior and saying, oh, well, this is the worst of the worst, and this means this person should never see the light of day.

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No, the mental health picture in the hands of an expert

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could actually explain some of those incidents and explain not only why they happened, but how treatment can prevent that kind of thing from happening again.

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So there is a panoply of sentencing issues tied into mental health and a diagnosis, a proper diagnosis at the time of the sentencing.

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Is the argument reduced to whether that treatment is done on supervised release or is part of the incarceration term?

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No, I think that whether it's done on supervised release or part of a recommendation that comes from the judge, if the judge had actually been considering this to the Bureau of Prisons to give special attention to this issue while in the Bureau of Prisons, then you would have had a different outcome.

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And of course, not to vary upwards.

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So the big problem here is the judge took these issues that stem from mental health and went upwards in the guidelines.

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It's not just merely a case where the judge landed in the guidelines and we wanted less.

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So that's the prejudice from this lack of consideration of the mental health piece is that we went up, not down.

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And certainly, we didn't stay in the guidelines either.

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And the judge went into great detail about so many things.

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And I think that that speaks to the fact that he did not consider mental health.

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Because if he had, we would have known about it.

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We would have seen it.

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Why don't you talk about your ineffective assistance claims?

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Absolutely.

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So briefly back to Mr. Roshan, if there's one thing that I got from working in his shop, his and Gary Coleman's shop for two years, was that if you could do nothing else for a client who is charged with a crime, if you couldn't save them from liability in prison, you could always do something to give them a fair and appropriate sentence.

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And here, the federal defender

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uh, has, has not done so.

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And it teed up an issue and then it whiffed on that issue.

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It didn't do something that the government can't even think of an explanation for why the federal defender didn't do this mental health evaluation.

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It simply didn't, uh, can't come up with anything, certainly didn't in its brief, um, pointed to, pointed to a case, uh, boroughs where

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the court found a deficient performance by a defense attorney who had not raised... The court assumed it without reciting it as the way I read that case.

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Okay, you may be correct, Your Honor, but the prejudice prompt, there the court took a look, apparently had plenty of information about what the defense was and the context and decided that there wasn't any prejudice from that defendant not having, not being able to make

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mental health evaluation before sentencing, well, we're in a completely different situation here.

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And I think I've pointed out how many different sentencing issues were likely or possibly impacted by this failure.

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And I think that here, again, the government can't even imagine a reason why that defense lawyer didn't raise the issue.

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I'm going to observe the rest of my time.

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Can I ask you one more quick question?

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Yes, your honor.

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So what what what counsel.

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Did here was argue.

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The different try a different approach to getting the sentence.

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in the range that they wanted it.

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And that was, he's on an upward trajectory.

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He's gotten his, I think he's obtained his GED at that point.

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He's found he has a starter.

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He's trying to get himself in order, get his life in order.

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He wants to be a good example to her.

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He wants to cut this behavioral trajectory off now.

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You couldn't make that argument if you,

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That's just inconsistent with an argument that he can't control his behavior because of mental health.

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You can't have both of those.

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A choice had to be made between those two options, which might be more persuasive to Judge McFadden.

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I do disagree.

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I think that they pair, they couple, those two arguments did couple.

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In fact, the defense attorney did raise mental health.

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He just did a half-baked job of it.

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And of course, this individual is on an upward trajectory.

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He just needs help, mental health help, in order to stay on track.

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And that's common sense, Your Honor.

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And I think that this defense attorney who he had did a lot of things right.

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But basically, what we're saying is that the thing that they didn't do left such a gaping hole in this defendant's representation before the sentencing judge that we cannot call that effective assistance counsel.

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I would love to have a chance to respond to the questions.

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Good morning, Your Honor.

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It's David Goodham for the United States.

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If I can address the issues in reverse order, focusing first on the ineffective assistance of counsel claim.

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The government full well understands that Rashad sets a fairly low bar for remand for a chance to develop the factual record.

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But Rashad does say that to raise a colorable claim, the defendant must make factual allegations sufficient to show a violation.

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And then this court's decision in askew goes further and I think gives meat to the bones of what a colorable claim in the context of a failure to investigate is.

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And at 88 after to 1073, excuse says to show prejudice, a defendant based on an ineffective assistance claim on his counsel's failure to investigate must make a showing as to what the investigation would have produced.

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And even can you was a case after a full hearing and after they had had an opportunity to investigate the ineffective assistance claim and present to the trial court what

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They think that the deficient performance was not even out the gate yet here.

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Right.

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And I fully understand different procedural posture.

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My reading of skew, though, is that to make out a tolerable claim

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on an argument of failure to investigate, you must at least point to some facts.

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You don't have to prove actual prejudice at this stage.

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100% agree with that.

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But you must be able to show some facts that would have supported the mitigation arguments my opponent has posited.

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And I would direct the court... How does that work on appeal here?

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They're supposed to... He's supposed to have gone...

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I guess on his own expense and hired a mental health investigator, hope BOP cooperated, get the whole mental health evaluation, then come show it, tell us what these facts are.

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I don't understand how this supposed to have worked.

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Well, I can answer that by grounding it in the facts here.

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The district court knew a lot about the mental health issues associated with the defendant.

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He'd had two mental health assessments, one when he was a juvenile and one when he was incarcerated in 2017.

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The diagnoses there were attention deficit disorder, number one, and mood disorder with depression is what it said.

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It would have been a very simple thing for defense counsel, for example, to go to the DSM and articulate why these, and his mitigations arguments are at 47, 49.

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It would have been a very simple thing for him to support the mitigation arguments he said were lacking here, which were his serious, excuse me, his serious

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mental health issues.

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He cites a journal article and he says, it's well recognized that serious mental health issues exacerbate your in prison time, make you susceptible to disciplinary infractions and maybe even explain, for example, the jail stabbing.

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But that same journal article, and this is 130 Journal of Criminal Law and Criminology at 151.01, says, quote, the typical offender does not have serious mental health illness.

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And just 14.5% of male inmates.

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So I'm sorry.

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I don't understand.

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I'm not understanding what you're arguing should have happened here to get these facts.

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Are we supposed to resolve?

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Whether that article helps or not, no.

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No, absolutely not.

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He goes and he's done the legwork.

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He's found this article.

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Unless we're certain that that's not what happened here.

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we aren't gonna play these percentages as on how we do it at this stage pre-hearing.

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So I'm still not clear when you say he had to come forward with facts before this court as opposed to a colorable basis, I think is our test for thinking that a hearing, an investigation into these facts is warranted.

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Now, maybe that investigation would come up that he's in the 86% if I got your statistic right, or maybe it'll come up that he's in the 14%.

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We don't decide that at this stage.

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No, but again, I think it's not asking too much in the failure to investigate context to be able to point to some facts that are just beyond rank speculation.

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And that's all we've got here.

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By speculation, the guy has mental health problems.

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He does.

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He's been evaluated twice.

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He's been medicated.

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Absolutely.

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It's not just, I mean, I don't know what more we need than the probation office itself said,

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This, you may want to think about a certain word variance because of mental health issues.

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So I don't think this is a case where he needed to build a record that there are mental health problems.

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I don't think Judge McFadden disputed that there were mental health problems.

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So the question is, did counsel drop the ball?

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And in US versus Thomas, we held that when an attorney, when the probation office itself and its PSR flagged

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a potential downward variance and counsel didn't do anything with it.

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Defense counsel did nothing with it.

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That warranted investigation into effectiveness of counsel.

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Isn't that exactly this case?

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It's not exactly this case.

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I mean, we have a pretty significant argument premised on the mental health issues from trial counsel below.

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No sophisticated argument.

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There's occasional, some generic stuff about PTSD, which I assume you would not think is sufficient.

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And that's about it.

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And in fact, he's talking about what an upstanding citizen he wants to be.

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And he took his GED, and there's no reference there to that he can't

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conform his behavior without the assistance of mental health.

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I mean, there's a strong record here of, I said, two evaluations, two rounds of different medications.

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Again, sorry to interrupt, Your Honor, but those evaluations, I would suggest, come up with diagnosis that don't even fit in the template that is provided by the journal article that the defendant himself decided.

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I think you're making this more academic than

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it really then this isn't an academic issue.

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The reason that the PSR said that you may want to consider a downward or at least is eligible for the downward departure is because for the documented history of mental health problems is that the policy statement

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in the downward departure guideline, et cetera, talks about the need for treatment and talks about mental health and other conditions that are way out of the ordinary spectrum.

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And the whole point of sentencing and the whole point of the guidelines is to have you look at the whole person and the whole set of circumstances.

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One thing that Judge McFadden said at sentencing was basically like, you've had all your chances.

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You're out of chances.

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You know, I hear all this stuff about your bad childhood.

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I hear that a lot.

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You know, I'm departing upward.

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You're talking about mental health in the context of, is it going to

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mitigate the offense or explain some sort of technical argument.

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What the guidelines you're getting at is when you have somebody who has extensive mental health problems that haven't been treated,

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Is it really appropriate to say you've used up all of your chances?

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And is it really appropriate to vary upward from the guidelines when perhaps what the investigation would show is that actually there were a bunch of chances he didn't get

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He wasn't even hospitalized and we don't even know whether he was treated after the suicide attempt at seven years old or elsewhere.

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So it just provides an opportunity to present a different side of the coin here in all we're talking about.

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is whether it would have potentially impacted the sentence, even if it impacted six months or 12 months.

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That's prejudice, right?

[00:23:04] Speaker 03:
Yes, I understand.

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And to be clear, this is not a hill the government wants to die on.

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I understand that Rashad is a very low standard.

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My core point here is that the failure to investigate claim is very susceptible to

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just saying could have, would have, should have.

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I understand that there is a record here already to mental health assessments and diagnoses.

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My point is, is that trial counsel did a lot with that record and tried to bring it to the floor as a mitigation argument.

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Judge McFadden recognized the very difficult childhood that this defendant had experienced, and he still thought it was appropriate, given his recent conduct, to vary upward.

[00:23:51] Speaker 04:
Mr. Goodhand, I want to direct you to another aspect, the ineffective assistance.

[00:24:01] Speaker 04:
I haven't investigated since Rashad.

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I was one of the members of the panel.

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But back then, we were the only circuit in the United States that allowed direct appeal

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evaluation of ineffective assistance.

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Every other circuit at that time said, if you want to bring such a claim, you've got to do it in habeas, right?

[00:24:29] Speaker 04:
Do you know whether that's changed at all?

[00:24:32] Speaker 04:
Are we still the only circuit that allows a direct appeal?

[00:24:35] Speaker 03:
I haven't done a survey.

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I think you are.

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But please don't quote me on that, because I didn't do the Westlaw research before this.

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But it's certainly the lore in my office that this circuit is unique in that respect.

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Obviously, I'm sorry.

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I just want to follow through on the ramifications of that.

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Let's suppose that you prevail here.

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And we have all this doctrine that has been built up because of allowing a direct appeal about when you send a case back to the district court.

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You know, you've got to make this kind of showing, you've got to, you know, allege facts and all that other kind of stuff.

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But if you prevail here,

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Is it the U.S.

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attorney's position that nevertheless Mr. Fields can bring a habeas action claiming ineffective assistance without having to go through all the hurdles that over the years our court has interposed?

[00:25:40] Speaker 03:
That's my understanding of the impact of Rashad is that that gives you that first bite on remand to have a factual record without using up your first 2255.

[00:25:51] Speaker 03:
He could make this argument in a 2255 context.

[00:25:54] Speaker 04:
And if he did so, he would be back before the district court.

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He wouldn't need our permission to have the district court evaluated.

[00:26:03] Speaker 04:
He could bring the action in habeas.

[00:26:05] Speaker 04:
And if the district court thought a hearing was appropriate, the district court could order it, which seems to me a rather orderly process rather than going through all this fandango about what you alleged and what you should have done and this and that, as you point out.

[00:26:23] Speaker 03:
That's correct, Your Honor.

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And I see my time's up.

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I don't want to belabor this point too much, but I am just suggesting this court understand

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the implications of, in the context of failure to investigate, not requiring some sort of significant sort of definite factual allegations that would show how the investigation might have led to a palatable mitigation argument.

[00:26:55] Speaker 02:
Do we have any indication in the record that defense counsel actually

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sought and obtained any of the prior mental health assessments.

[00:27:06] Speaker 03:
We don't know anything about that.

[00:27:08] Speaker 02:
The PSR said that the downward variance may be warranted based on the documented history of mental health problems.

[00:27:20] Speaker 02:
Did the defense counsel seek the downward variance based on mental health problems?

[00:27:28] Speaker 03:
My opponent will be able to answer that better than I. I think it was discussed at the sentencing, but the more general gist of his argument was in support of mitigation.

[00:27:41] Speaker 03:
His background and characteristics justified his mental health issues, justified his violent conduct, or explained it.

[00:27:51] Speaker 03:
And that was the PTSD argument in particular.

[00:27:55] Speaker 02:
And the fact that you can't just answer yes to that, to me, argues in favor of there being at least a colorable claim of ineffective assistance.

[00:28:11] Speaker 02:
If the probation office identifies the grounds for variance, but the defense doesn't even like clearly make that argument in favor of variance, is that objectively reasonable?

[00:28:30] Speaker 03:
Well, again, my opponent who knows his case better than I do, I apologize, will be able to answer whether I just can't answer that right now at this joint juncture, whether or not that actually was made.

[00:28:43] Speaker 03:
But certainly mental health was a significant focus at the sentencing.

[00:28:47] Speaker 02:
Let me ask you this, ask it this way.

[00:28:51] Speaker 02:
Is it objectively reasonable performance for a defense lawyer to not make an argument in favor of a variance downward that was identified by the probation office in the precinct's report?

[00:29:07] Speaker 03:
Answer that yes or no.

[00:29:12] Speaker 03:
It's difficult to answer that yes or no only because there are many different factors that go into the assessment of we have a significant presumption of reasonable strategic decisions that Strickland teaches.

[00:29:26] Speaker 03:
In this case, I can posit a very easy and simple

[00:29:29] Speaker 03:
strategic decision that supports this defense counsel not asking for an expert, for example.

[00:29:35] Speaker 03:
He looked at the mental health assessments.

[00:29:37] Speaker 03:
He saw the diagnoses, attention deficit disorder and mood disorder with depression.

[00:29:43] Speaker 03:
He then perhaps went to the journal article that my opponent cites and noted that the studies indicate that serious mental illnesses

[00:29:53] Speaker 03:
can justify perhaps disciplinary infractions in prison.

[00:29:58] Speaker 03:
And he said, I don't have any record of that.

[00:30:01] Speaker 03:
I'm not even going to get funding for an expert.

[00:30:05] Speaker 03:
So I'm not going to go down that road.

[00:30:06] Speaker 03:
Instead, I'm going to argue history and characteristics.

[00:30:11] Speaker 02:
So my point is- You just conceded or just said to me that we don't have any evidence in the record that counsel actually even had those assessments.

[00:30:19] Speaker 03:
My answer was in response to your suggestion that I can see that a failure to make that decision on the part of defense counsel in the face of the PSR saying this might be a variant is not possible when you have the presumption of reasonable strategic decisions on the part of defense counsel as taught to us by Strickland on the one hand, and we have a very robust

[00:30:45] Speaker 03:
sentencing mitigation argument made by defense counsel on the other hand.

[00:30:50] Speaker 01:
So that's my only response is into your suggestion that I can see that mental health that was not based on mental health.

[00:30:57] Speaker 01:
The mitigation argument, the downward variance, neither was based on mental health.

[00:31:01] Speaker 01:
And I would have thought the answer to Judge Wilkins question would have been U.S.

[00:31:04] Speaker 01:
versus Thomas, where it was worth it was actually found conclusive evidence of deficiency here.

[00:31:13] Speaker 01:
We're not at that stage.

[00:31:15] Speaker 01:
or at the prior stage of whether that was where, again, ignored a PSR recommendation, just didn't do it at all.

[00:31:24] Speaker 01:
And so the only question for us is whether having dropped the ball on the PSR, maybe initially having dropped the ball on the PSR recommendation,

[00:31:39] Speaker 01:
Is there a culpable claim that merits investigation?

[00:31:42] Speaker 01:
That's all we're deciding at this stage.

[00:31:44] Speaker 01:
That investigation can produce the things that you are saying, could produce strategic judgments.

[00:31:51] Speaker 01:
Sure.

[00:31:54] Speaker 01:
More questions?

[00:31:55] Speaker 02:
So what we know from the PSR is that a mental health assessment was done at the DC jail in 2017.

[00:32:02] Speaker 02:
In 2017, Mr. Fields was 17 years old.

[00:32:09] Speaker 02:
and he had been arrested in November in connection with the armed robbery offense.

[00:32:19] Speaker 02:
And so based on all of that, what it appears then is that there was some sort of intake assessment done at the jail, which is done, where they find out what medications people are on so that they can make sure they get them those medications and then they can get a sense

[00:32:39] Speaker 02:
of their self-reported mental health history to take that into account for how they might house them, etc.

[00:32:51] Speaker 02:
That's something that's done over the course of probably two minutes of evaluation, assessment.

[00:33:02] Speaker 02:
That's why it's called an assessment.

[00:33:05] Speaker 02:
that's completely different than in evaluation.

[00:33:14] Speaker 02:
It's apples and oranges.

[00:33:15] Speaker 02:
It's kind of like, you know, what we talked about in Chavis about a competency evaluation being completely different than the defense expert hired to pursue an insanity defense.

[00:33:31] Speaker 02:
They're two different things.

[00:33:33] Speaker 02:
So given what it's reasonable to surmise the 2017 mental health assessment at the DC jail was, you made the argument that the judge wouldn't even order an evaluation because that assessment had occurred.

[00:33:59] Speaker 02:
Explain that argument to me.

[00:34:01] Speaker 03:
That wasn't my argument.

[00:34:03] Speaker 03:
My argument was Strickland teaches that defense counsel make decisions all the time on the available information about which defenses to pursue, which mitigation arguments to pursue.

[00:34:15] Speaker 03:
And my argument, simply in response to your honor's question, was based on the mental health assessment from the DC jail that you've just described.

[00:34:25] Speaker 03:
I totally agree.

[00:34:26] Speaker 03:
Not a 24-hour evaluation, for example.

[00:34:30] Speaker 03:
But also the PSR does refer to another mental health assessment that was done when the defendant was younger and that's where we get the diagnosis of mood swings.

[00:34:41] Speaker 03:
My only point is we can posit a scenario where defense counsel looks at that record

[00:34:50] Speaker 03:
and says, I've got two assessments.

[00:34:53] Speaker 03:
They're talking generally about mood swings, mood disorder.

[00:34:57] Speaker 03:
Maybe I should pursue another mitigation argument, which he did.

[00:35:01] Speaker 03:
I'm not saying that necessarily that would have precluded the judge from granting him the funds for an expert.

[00:35:07] Speaker 03:
I'm not suggesting that necessarily would have precluded him from asking that in a non frivolous way.

[00:35:12] Speaker 03:
All I'm saying is that Strickland teaches that we have a presumption about how defense counsel operate in a reasonable fashion and make reasonable strategic choices.

[00:35:22] Speaker 03:
this record suggests for sure suggests that this defense council made a number of reasonable choices.

[00:35:29] Speaker 03:
That's my only point and I'll finish with this unless of course court has any other arguments.

[00:35:35] Speaker 03:
I mean questions but you know

[00:35:39] Speaker 03:
I focus most of my argument on the prejudice prong because what I haven't seen in the record is any suggestion that an investigation would lead to information that would have moved the needle on a mitigation argument relating to, for example, the in-jail stabbing or his disciplinary infractions, which are the only mitigation arguments he proffers at pages 47 to 49 of his brief.

[00:36:03] Speaker 04:
All the evidence, if I understand your point, all the evidence regarding his mental health was before Judge McFadden.

[00:36:12] Speaker 04:
The only thing that wasn't before Judge McFadden is a label put on it by a psychiatrist.

[00:36:18] Speaker 03:
I think that's in essence that we know there was a significant body of information the judge had.

[00:36:25] Speaker 03:
We know from piles that we have to assume he considered it.

[00:36:29] Speaker 03:
He did order mental health treatment, so we know in fact he considered it.

[00:36:33] Speaker 03:
He decided that didn't.

[00:36:35] Speaker 03:
answer the question of why this defendant, you know, who had a prior felon in possession, then on supervision escaped from his halfway house and stabbed a jail in me.

[00:36:46] Speaker 03:
But again, I've gone way over my time.

[00:36:49] Speaker 02:
I have a question following up on Judge Randolph's questions about habeas.

[00:36:59] Speaker 02:
If we

[00:37:02] Speaker 02:
reject remand here based on our case law.

[00:37:09] Speaker 02:
It would have to be based on that there's no colorable claim from what we see of ineffective assistance.

[00:37:18] Speaker 02:
So why would it be the case that if that's what we do and then Mr. Fields files his habeas petition, the government just says, collateral estoppel, no colorable claim, deny the habeas petition?

[00:37:40] Speaker 03:
I'm not an expert in collateral estoppel.

[00:37:42] Speaker 03:
I haven't thought about it.

[00:37:43] Speaker 03:
But my point is that in the context of a 2255, the defendant could do what he hasn't done now, which is develop the record and point to specific facts that an investigation would have uncovered.

[00:37:57] Speaker 03:
That's it.

[00:37:57] Speaker 01:
Does he have an attorney for a 2255?

[00:37:59] Speaker 03:
I think that's in the court's discretion.

[00:38:03] Speaker 01:
Yeah, so he might not have an attorney.

[00:38:05] Speaker 01:
Right.

[00:38:06] Speaker 01:
And the person with mental, let's assume for these purposes, the person with significant mental illness is supposed to develop the facts.

[00:38:18] Speaker 01:
Pro se.

[00:38:20] Speaker 03:
It happens a fair amount, Your Honor.

[00:38:21] Speaker 03:
But again, he could also ask for counsel.

[00:38:25] Speaker 03:
All right.

[00:38:27] Speaker 03:
Unless there are any further questions, I would ask that the court affirm the judgment below.

[00:38:30] Speaker 03:
Thank you.

[00:38:31] Speaker 01:
Thank you, Firm.

[00:38:32] Speaker 01:
tolerating all our questions.

[00:38:34] Speaker 01:
Mr. Shibbi, I think you asked for two minutes, is that correct?

[00:38:37] Speaker 05:
Yes, your honor.

[00:38:38] Speaker 05:
Thank you very much.

[00:38:39] Speaker 05:
I want to start with the whole notion advanced by government council that this was the result of a strategic decision by council below.

[00:38:49] Speaker 05:
The Wiggins case, it makes very clear that strategic decision requires

[00:38:57] Speaker 05:
adequate investigation.

[00:38:59] Speaker 05:
You cannot make, you cannot enjoy this presumption that defense counsel made a strategic decision and wasn't being ineffective.

[00:39:07] Speaker 01:
Why weren't these assessments that were in the record enough?

[00:39:11] Speaker 05:
Well, Your Honor, they were old.

[00:39:12] Speaker 05:
They were pre-COVID, which explains why we can't rely upon those assessments to address his either current situation at the time of sentencing or when this violent event took place that was counted against him.

[00:39:29] Speaker 01:
Do you know how thorough these assessments are?

[00:39:31] Speaker 05:
No, but they can be presumed to not be what he would get if you were given a proper expert evaluation as should have been the case.

[00:39:43] Speaker 05:
So we don't have an adequate any indication of an adequate investigation.

[00:39:47] Speaker 05:
In fact, there was a failure to investigate.

[00:39:50] Speaker 05:
The council for the government wants us to make factual allegations, which would have to come outside the record of the district court.

[00:39:59] Speaker 05:
And the court of appeals isn't supposed to consider facts outside the record on the district court.

[00:40:05] Speaker 05:
I have my appellant's appendix here, full of what I could find on this.

[00:40:10] Speaker 05:
I can't take something I find in the file and jam it in there.

[00:40:14] Speaker 04:
What information bearing on your client's mental health

[00:40:21] Speaker 04:
excuse me, was not before Judge McFadden.

[00:40:26] Speaker 05:
Well, Your Honor, that would have been determined by an expert and we can't develop the record and that's not the role of the Appeals Court.

[00:40:36] Speaker 04:
As far as we can tell, every piece of information that was relevant to his mental health was before Judge McFadden.

[00:40:43] Speaker 04:
Is that a fair statement?

[00:40:45] Speaker 05:
That's not a fair statement, Your Honor.

[00:40:47] Speaker 04:
I hate to say it because... Okay, so what evidence

[00:40:50] Speaker 04:
it was there that was not before Judge McFadden, which was my question.

[00:40:55] Speaker 05:
Well, that would have had to have been discovered through adequate investigation.

[00:40:59] Speaker 05:
This gets back to my point.

[00:41:00] Speaker 05:
You can talk to your client.

[00:41:03] Speaker 05:
Well, Your Honor, I could tell you, couldn't he?

[00:41:06] Speaker 05:
Your Honor, that is in my understanding of appellate procedure, not the way it happens.

[00:41:12] Speaker 05:
And I could tell you that

[00:41:13] Speaker 05:
I could tell you that my client requested mental health evaluation.

[00:41:17] Speaker 04:
Well, I know this is a unique situation because we are in a position almost of being a district court making a decision about whether a particular claim has merit or not.

[00:41:31] Speaker 04:
But nevertheless, given that unique situation, there's nothing that would bar you from getting an affidavit from your client.

[00:41:41] Speaker 05:
There is nothing that would bar me from exceeding the district court record for purposes of this appeal.

[00:41:47] Speaker 04:
Okay.

[00:41:50] Speaker 04:
Thank you.

[00:41:51] Speaker 01:
Thank you.

[00:41:52] Speaker 01:
Mr. Kirby, you were appointed by this court to represent Mr. Fields in this appeal, and we are grateful for your assistance.

[00:42:01] Speaker 01:
Thank you, Your Honor.

[00:42:02] Speaker 01:
The case is submitted.