Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. Why even get to the merits of it? The question is, I'm the fundamentals of it. How can something in state court waiver right which only arises under federal law? Well, he did. I mean, he was colloquial on it. He said, not believing it. When you see it, you did that you're answering something which is, I can't accept, you've got to say, why in state court someone can wave a right which your eyes is only under federal law. It seems to me you're going to be right. It cannot be waved if you're in a federal proceeding or a federal type of situation. Well, colloquial included a specific waiver of the right to further review. That's what Judge Cowan is asking you. We know that that is what occur. The question is, can there be an effective waiver in a state proceeding, all of a federal right? That's what Judge Cowan is asking. I'll add to his question and ask, why can't there be, since in a guilty plea colloquial, a defendant waves all kinds of federal constitutional rights and federal rights? Well, I think that's true. I mean, the result of his waiver, he said, I want to be executed now. I don't win any further review. State or federal? He never mentioned having made his court a step. He was specifically colloquial on this point. He was colloquial and said he hadn't either discussed it with his lawyer, is there? No, he didn't. I'm no federal. He specifically said that he had not discussed that, had not been brought up with his lawyers or by his lawyers. On page 36 of her brief, he's asked, do you understand that you have right to go to a federal judge and ask him, or him or her to evaluate your claims? Yes, I'm aware of it. And then you understand you could appeal that decision to the federal court of appeals and ask him to review your claims. Yes. And then again, you can go to the United States Supreme Court. I am aware of it. And he continued to insist that he wanted to waive for the review. The author of the review? The question is, can a state court waiver bar federal habeas review? My answer to that is, yes, Grana. All right. Assuming that's your answer. And obviously, the answer of the question is, I understand that. I have a much more fundamental problem. But I obviously speak only for myself. But I'm an old state DA and an old state trial court judge. I've tried these cases as a lawyer and as a judge in the 70s and 80s. And I must tell you that the procedure followed by Jack Sabo in this waiver hearing was, in my view, bizarre. And I would like to hear how the commonwealth can justify both the structure that Jack Sabo used, pursuant to the remand order from the Supreme Court. And then the tone and tender of the hearing itself. With respect to the structure, I'm referring to the fact that he declared some kind of possessory interest in this proceeding based upon the remand. It's my proceeding. This is my witness he referred to, Faye. And then he proceeded to not so much at the outset quite to Mr. Faye himself. But to turn him over to the district attorney to question, this is Mr. Faye's waiver. Does it occur to you as being an extremely unusual, say the least, way to proceed pursuant to this remand? Well, Judge Smith, I think the PCRA courts approach to this was that the Pennsylvania Supreme Court had remanded the matter directly to Judge Sabo to determine whether Faye's offered a way further collaboratively. He sure that's what they did

. What's going on here? That's what they did. And the Judge turned Faye over to the DA for questioning. In fact, there were objections, interposts by Faye's attorney to the fact that they were unable to question. Well, there was another issue going on at the hearing. There were a number of attorneys professing to represent Mr. Faye. His permanent counsel were Narskeleman and Louis Natali. And at this point during when the case was remanded for the colloquy is when President Counsel got involved on the case. And I believe some of what the court is referring to is the PCRA trial courts real concern as to who really was representing Mr. Faye. Well, certainly with all due respect, the affiliate of the district attorney's office was not. And the prosecutor dominated the initial questioning at least of Mr. Faye and proceeded to do so despite objections from Mr. Faye's counsel as to how they wanted that proceeding conducted. And it was conducted solely because Mr. Faye had indicated to the court that he wanted to wave these rights. It was his proceeding. And before you even got to that, in order to determine if somebody can battle the wave, don't you have to determine first that they're competent? Well, this court recently held in Taylor versus Horn that he don't necessarily, when a trial court finds that a waiver was knowing and voluntary. And plus it in that finding is a competency determination. Now here, but in Michael V. Horn, in a capital case, you got to determine that they're competent first. And Judge your partner, what's she not waiting saying that? In other words, if I say to you, I wave X, don't you first have to figure that Ambrose competent to wave at all? You do, but there are a number of things that I need to do. In that regard, you have to make a competency determination or specifically have a competency hearing. If there is some significant addition of incompetency, here there was none. Ms. Murray, isn't the answer to Judge Ambrose's question? A Supreme Court decision? Godinus versus Moran, a court is not required to make a competency determination in every case. As in any criminal case, a competency determination is necessary only when a court has reason to doubt the defendant's competence. That's correct, and Judge Sego had no reason to doubt that he's competent. But as a attorney, he's brought it up to high-nother double. They didn't have colloquy. They insisted that competency was not an issue. And I might add, Judge Sego was also the reason. When did they bring up the, that they wanted to ask questions relating to competency and Judge Sego cut them off at the turn every time? It wasn't for competency. They made a vague illusion to some to the conditions of a confinement being a hardship. They never, ever suggested that they would be competent. It was even, it was just the voluntaryness issue and not an issue of competency. Judge Sego still cut them off and prohibited the introduction of any evidence that might have been relevant to the issue of voluntaryness. Nothing was, when they repeatedly said that he was not threatened or forced in any way to waive his right to further collateral review. Council said nothing. But when Fadi, a reading from Judge Shapiro's decision, when Fadi acquired Judge Sego, quote, I mean, doesn't the order say you are determined by competency? Close quote. The Judge is bothered quote. You and I know you are not insane, right? Those attorneys might think you are saying but I double. That's sort of fun, the center isn't? Well, Your Honor, there's one thing I need to put down, Maverick Guard. The Judge Faye was the trial judge and he was also the PCR agent and Faye's third PCR in preceding. You mean Sego, you mean Sego? Judge Sego

. And there was a two day of an engineering hearing, okay? And at that time, Council suggested that Faye might be incompetent, but no evidence was ever presented as to competency. So, and the remand was not for purposes of determining competency. No. The remand, the exact language of the remand, or it was not remand, the trial court for a collective to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and away from collateral proceeding. And there really was never an issue of competency in this case. Companency was maintained by Judge Shapiro at the Federal Auditorial Hearing, but she too concluded that Faye was not in competency. And at the same time that there's no question of competency. How do you get around the fact that it appears Judge Sable cut off Faye's lawyer from establishing facts or wanting to put into record facts which would indicate that this is not really a waiver. It appears that it's a coerced or a pressured waiver. The lawyer appears to be having been sidelined by Judge Sable. Council never suggested that Faye had been threatened in any way. He was prevented from bringing to the court's attention proofs. He was trying to make an offer of proofs that he was going to make. And Judge Sable expressed complete disinterest in that type of proceeding. And like further add that whatever that offer of proof was, the Judge Sable did not entertain, was profit of the Pennsylvania Supreme Court, which concluded that the waiver was competent, knowing and violent. No, no, wait, wait. That's after the Judge Sable was proceeding. The fact that the Supreme Court agreed that Judge Sable does not, for our purposes, make that a fact that we're going to live with. Our briefing appears to be indicative of the fact that Judge Sable kind of will say he's attorney from trying to establish facts which would indicate that whatever waiver he's so forth was coerced and not a voluntary waiver. And my response to that, Your Honor, is that that profit, whatever that was. And it certainly didn't include any psychiatric profit because no psychiatric profit was made in Faye 3. The supposed to be the same for us. No, but we're not telling that. No, but he did. He was cut off. We acknowledge that. Seems to be a yes or no. I don't want to put what you're mad. But this is something I appreciate. I agree that Judge Sable did not permit extensive questioning on the part of counsel. Well, that counsel was prohibited from establishing facts which he would indicate that Faye 3 was induced by the conduct of personnel, which prevented him from truly expressing his sentiments. But my response to that is, while counsel was not committed to question Faye about a vague allegation of the complications of his confinement, because that's what they asked a question about. And there was such a surprise. No, counsel never said my client was threatened before he came into court today. And allegedly, according to both Faye and Mr. Nolis, Faye told him he talked to his counsel before he went into the call of the week. And counsel knew. When Faye did mention to the court his concern about a prison guard who had the same surname as the victims of crime. That would be the first hearing on the second year. And the court? That was no relevancy. That was no input. Well, and the court said to him, well, he transferred him to another prison and Faye appeared to be following him. He said nothing more was said about it. It was very, I don't want to cut off the time on the waiver. But I'm interested in your position concerning the findings of Faye's stitch which were made by the district court on the habeas petition, if my colleagues have no objection

. I'm concerned with the fact that your position concerning the findings that Judge Shapiro made. Okay. Well, before I go into that, I just want to point out that we do have, there's an issue with regard to the standard of review. I think this court's recent decision in terror makes it clear that the federal hate me to statute standard of review would apply to the state court's finding of the waiver was competent knowing involuntary. And that's the lower court determination and the Pennsylvania Supreme Court's determination. Why did the district court's findings, the only evidence of alleged threats by prison guards was Faye's own self-serving testimony. Judge Shapiro did not really even believe that. She stated she didn't believe he actually suffered the abuse that he alleged. She said she found that Faye, he quote, lived in a state of fear and agitation caused by the expectation of danger based on Faye's mental health expert. Faye, when the mental health expert testified at the hearing, a doctor Bernstein, and he was on the opinion that Faye suffered from post-traumatic stress disorder, which caused him to believe that his life and the lives of his family members were in danger if he waived his rights. Dr. Bernstein also opened that Faye was incompetent. He said he was competent that day, testified, he was competent during the trial. We know the testimony. We want to hear from you. What can you find with the findings that she made concerning the petition? The fault is that the court really applied a denobo's standard and the standard has to be whether the petitioner rebutted the state court's factual findings, both the trial level and the Supreme Court. They're both entitled to difference. Whether the petitioner rebutted those findings by clear and convincing evidence. I admit that the petitioner said that if she's making, if no findings were made in the first place by which she's banned. Findings were made by which she has been found. As to voluntary use? Yes. Please read them to us. I remember a general termination made by Jim St. Luke, so this specific part of the petitioner. The Pennsylvania Supreme Court had Supreme Court findings. How could findings are entitled to the same difference that lower court findings are entitled to? How can an appellate court make findings? Well, can this court repeatedly set that the Supreme Court set it in some of the verses? No, no, no. How can an appellate court make findings of fact? I know we can. But state court findings about the appellate court are in a different way. How does an appellate court make findings of fact? It has to be made at a trial court level or some lower court level. And then it's appealed to the appellate court. The appellate court applies a certain standard of review to that finding of fact. Judge Smith's question is where is the finding the fact at this trial court level before Judge St. St. Luke said about where the picker at level? The court ultimately concluded that the waiver was knowing intelligent and voluntary. Well, they reviewed the findings of fact made by Judge St. Luke. I was happy you're saying. Well, yeah. But they didn't make findings of fact. That's great court. And they endorsed his view of the record. But they only reviewed what he did. They did, but under the appellate court findings are entitled to the difference. We can't judge the case. The case for me, can we not, is Murray, that the statutory language itself is odd as it may be

. It presumes that there are factual findings made in the course of state proceedings both at the trial court level and at the appellate court level. Yes. Now, as Judge Jim wrote of suggests, that is highly unusual as a practical matter. The findings of fact of virtue have always made at the trial court level and reviewed and accepted rejected. That's certainly quite a valid determination. But I absolutely, absolutely. But I will return to the procedural issue here because I'm deeply troubled by it. And also because, it necessarily, in my view, based on our own jurisprudence, impinges upon the word that is not the case. The review of the findings of fact and the nature of the standard of review apply. And I want to just read you this brief language from our elaborate opinion and asking to comment on it. What we said was, the procedures a state court applies when adjudicating a petitioner's claims may also be relevant during habeas review. The extent to which a state court afforded a defendant adequate procedural means to develop a factual record. Whether the defendant was afforded a full and fair hearing to put it in the parliance of the pre-ADPA statute, may well affect whether a state court's factual determination was reasonably in line with the evidence presented in the state court proceeding. Or whether the petitioner has adequately rebutted the presumption. Or we compelled by our own jurisprudence to consider the nature of the proceeding in the man in which it was conducted by Judge Savile, in determining the reason was of any fact farming he engaged in on the issue of voluntary intelligence. Yes, Your Honor, but the lower court concluded that simply by virtue of proceedings, the 254D didn't apply at all. It applies under the law. The question is to what extent all of that weighs into the equation in applying deference, but the 254D still applies. And Lambert holds that televerse is horned, the recent decision that it was issued last month, they all hold that. With the point being that if there is something wrong with the way things were done, the process by which the findings of fact were made, then you don't have a foundation, if you will, for claiming that there should be deference given to those findings. Isn't that correct? I think there is a foundation in this case. No, I said I absolutely don't want a legal question. If there is a problem with the process by which the findings were made, then we don't have to give deference to those findings, correct? Don't apply to this case as a matter of just theory. It would have to be a very, very significant problem. I think what Lambert says is it weighs in the equation, but it doesn't mean you don't give deference. It's not a way I read Judge Shulttoff's language. I think it's a question of the level of deference, if you will. You don't think that cutting off council and virtually prohibiting defense council from participating in a meaningful way in the presentation of evidence? Is fundamental to the matter in which this proceeding was or could have been conducted? Well, the trial did just frequently cut off council. I mean, that is not necessarily the positive. I mean, if you were known to do that ourselves at the impoverished level, but that's not my question. At the federal of it, Anjury, I need to have a power of power. I'll put a certain point doing foreign cross-examination. I think that is positive of the knowing and voluntary nature of the waiver. Ms. Miserie, I read both of the transcripts and parts of the re-readbook. And again, I call upon a lot of experience ancient as it is down in the trial plastics. And I must say that when I read a trial judge threatening contempt, threatening several times that the defense council moved from the courtroom in insulting council, at one point it was all of council that even included the assistant district attorney presence. Calling, playing up apparently to Mr. Fahey by suggesting he had more brains to use shared stables, than all of council members together. Can you defend? I don't ask you to defend. Do you think that that is anything other than an absolutely extraordinary proceeding? I'm just a country lawyer. Maybe this kind of thing goes on a lot more than I realize, but it sure is going on in my experience. The point I would make in that regard here, Your Honor, is that while that might seem extraordinary, the court was not in any way pressuring Henry Fahey to waive his rights. Anything he kept saying to Mr. Fahey, look, if you don't want to waver, that's fine

. I'll send it right back to the Supreme Court. We'll go ahead with the appeal. That was his car. It was not coercive. Every time someone raised something, all right, well, we'll dispense with this and I'll send it back up. Which means there's no waiver. Right. But Fahey, which means there's no waiver. The assistant of that waiving his rights, despite counsel's efforts to convince the judge was hesitant to allow an eventual determination of no waiver here. He continued to press and not to send it back up despite several threats. Well, I think that was because Mr. Fahey kept insisting that he wanted to waive his rights. All of the abusive language that took place, the visa be counseled to police and Mr. Fahey's presence. Mr. Fahey was in witness to how, which lawyers were treated in that court. I think that as it may, the waiver is covered extensively in a breeze. You covered your opening brief, though. Oh, I didn't. The question is whether or not you waived it yourself. No waiver? Oh, I had pages on the validity of the waiver. Not the opening brief. It might opening brief your honor. Yes. No wait, I'll tell you. Let me just to change topics a little bit. How can anyone, meaningfully, prosecute a vaccine claim or put a vaccine claim forward when they don't have transcripts of the WOD there? We've seen a lot of these, you know, and uniformly they're based on wanting that occurred in the trial court. How could he, meaningfully, go forward with that claim when he was prohibited from getting even transcripts if there? Well, what's prohibited? His lawyers never worded the transcript. Not his trial attorney, and he was also as a paladin attorney, not his first piece of array attorneys. And now, I mean, 20 years later, there's no, allegedly no transcript. I don't know whatever it is currently called, but it's a transcript. The transcript is a transcript. Well, Collarot Council is ineffective. This is not a constitutional claim. But the bottom line is that this court addressed this issue in Caravan and also in the US versus Sierra. The point is, at this point, he needs to show a colorable need for the transcript, and he hasn't. Well, I can share what he needs because he doesn't have what went on in the jury's selection process. Well, this court has previously suggested that what he needs to do is confer with trial counsel, get at the David's from trial counsel, do something to make some constructive allegation as to error at the portion of the transcript that's no longer available years later. This is not a situation in which a fake was denied the transcript. Why is that a fake accomplice? He can't make a showing because he has nothing to make a showing with. Well, I suppose it could turn into a catch-22, but years later, with no effort, when it is the appallance burden to obtain the transcript, and when a series of lawyers, many of them post-conviction, who, if no effort to obtain the transcript, at some point, I mean, the Supreme Court has said you have to show a colorable need, and this court has also said that. And he hasn't done so. He has no bats in claim on it. I could get to that in Rebellul or whatever. He has no bats in claim, and he has no other specific claim of error relative to the jury's selection process

. I'm the mayor of the thing with you from Mr. Nolis, and then we'll let you get a chance to deal with that on Rebellul. Unless my colleague has any questions on this now. There's one other issue in my appeal, but it's fairly straightforward, the mills are shared. I'm going to deal with that on Rebellul as well. Thank you, Your Honor. In fact, we get both sides of the chance to deal with that. Just before you get out Mr. Nolis, is Rebecca Lamb here? You just want to sit up here if you wouldn't mind. Please, the court. Good morning, Your Honor. Billy Nolis and Matthew Laury on behalf of Mr. Fahey. This case has penalty phase issues pending before the District Court that are legitimate, and has some guilt phase issues that I'm going to talk about this morning. The procedural default issue is something that we urge the panel to deal with, because it's amazing to me that after all these years, we're still debating that proceeding that I conducted with Judge Sabal 10 years ago. It's remarkable. I won't go over it in detail. Judge Shrippira says five times. There's an effort to question Mr. Fahey to make an oral proper, to make a written proper. It's actually seven times. I'm confident it's your coercion. On the voluntary, Mr. Lula's going on. I'll tell you right up front. We use it. In the past, when I was younger, we used the word competency kind of loosely. But the reality of it is we were saying there are psychological factors that are affecting one's business. There is also a fundamental distinction for legal purposes between competency, which goes to capacity and voluntaryness, which may have absolutely nothing to do. Sure, but volunteering has two components. One, volunteering is has the component of whether somebody has the capacity, and two, has the component of the juxtaposition. You have to reach voluntaryness of someone who lives any capacity. Yes, but within voluntaryness, there is the second component of the choice the person is making. Is that choice being made with open eyes? Is that choice influenced by a psychological factor? Is that choice something akin to what should Shapiro flound, the words, the impetus for what Mr. Sabal didn't state good? It seems you focused initially on what Judge Piro found. Let me ask you about the extent of deference that we owe the state court finance here. It's my recollection from Judge Shapiro's opinion that she ruled that because of competency determination was not held at the state court's determination of voluntaryness, it was not entirely of the presumption of correctness. Is that what she agreed that that's what she determined? That's part of what she will indicate. You agree that she determined that we can get into other parts, but we're going to get anywhere here. Sure, we have to try to find a certain commonality. If I heard me undoubtedly inquire your adversary about the Supreme Court case of the Venice versus Iran that indicates that the competency determination is not necessary in every case. If that is in fact the law, then was it Judge Shapiro in error in determining that the presumption of correctness was not happened? What Judge Shapiro did is that she actually found Mr. Fei, he competent ultimately. So the issue is a non-starter in this case. And competency as such is not the issue before the court

. What is the issue before the court is that as to the voluntaryness of the waiver, as to the validity of the waiver, something that this court in Taylor's most recently said is a valid legal issue. And of course the Supreme Court itself, I said in the rest of times, is a valid legal issue. As to the validity of the waiver, whether it was done with open eyes, whether it was done by somebody who was capable of waiving or somebody who was waiving because of a factor affecting their waivers that the Court should hear about. As to that, Judge Shapiro found there was no failure to develop the evidence in the state courts because there was an attempt to proper it several times to Judge Shapiro, although he refused to hear it, no failure to develop in the Pennsylvania Supreme Court because it was all provided to the Pennsylvania Supreme Court in affidated form, affidated from myself, from Mr. Pooja Maul, and other women. And the state courts wouldn't hear it. Even with all that, Judge Shapiro said she would give deference to Judge Sabo's waiver ruling and then conduct a hearing to see if we could rebut that by clearing convincing evidence. That's perfectly permissible on the 2254 E, under E2 there was no failure to develop under E1. She put the burden on us to rebut the state court finding by clear and convincing evidence. And so the commonwealth's position that somehow Judge Shapiro did not give deference, she gave deference. She said the unfairness of the hearing is significant under 2254 E2, that's the reasonableness of the state court fact funding, and is significant under 2254 E1 whether we rebut it by clearing convincing evidence. She then did what this Court in Christensen's District Court could do and what they could do clearly under the claim language of the statute, which is conductive hearing on a procedural default. Would you agree then that the Lambert language that I recited for Ms. Murray is relevant here to the fact finding by Judge Sabo? Sure, absolutely relevant, but it's relevant in to the not but and it is relevant in two ways. It's relevant under 2254 E2 to the relevancy to the reasonableness of what Judge Sabo did and what the Pennsylvania Supreme Court did and then affirming Judge Sabo and remember how the Pennsylvania Supreme Court did that. Ms. Murray says all they reviewed everything and they affirmed it. They did that by putting blinders on. We won't read Mr. Dulles' FAFIT David. We won't read Mr. Mujamal's FAFIT David. We won't read the FAFIT David from the interns who say we were there, we saw what happened and this man was not in tact. They refused to look at any of that evidence when they affirmed they only looked at the four corners of what happened in that hearing. It's so much surprising that even looking at the four corners of what happened in that hearing they affirmed but nevertheless they refused to look at the very evidence that was presented to try to show that that hearing did not properly assess the issue that they had remanded in the first place. And just as a footnote, the August 21st after David from Mr. Fady, that's the after David within 15 days of the hearing where he says I was cursed, I was threatened, I was afraid for myself, I was afraid for my family, what I did was not voluntary, I want to litigate, and I was given to Judge Sabo. That was still given to him before the case went to the Pennsylvania Supreme Court and even then it was put to the side. In any event what Judge Shepard did is she looked at all of that and she interestingly said even with all of that, even with I think I guess speaking for Judge Shepard I could stop right now and say this whole thing was not reasonable, was not fundamentally fair by any stretch of the imagination, but I will still give it difference, which is what she did. And then she said petitioner, can you rebut by clearing convincing evidence, the State Court funding, but there was a voluntary proper way and she conducted it hearing. And she made findings of fact and remember this interplay in the briefs where the Commonwealth is kind of saying clear convincing is this thing that your honors are reassessed on your own. The reality of it is whether something is clear and convincing is it clear to the trial of fact to Judge Shepard. Is it convincing to the trial of fact to Judge Shepard. She conducted a hearing and she very carefully laid out her findings of fact, Dr. O'Brien, the Commonwealth Society. So after all of this I take it going back into my original question, did you agree that Judge Shepard correctly applied the 2250 presumption? With respect to these findings? They're by requiring you to rebut them like me. These are, yeah. Our position was you shouldn't even apply the presumption because the hearing's... Well that's what I was getting at when I was asking you about her determination with respect to competency, which I agree with you is not an issue in this case. What was ruled... how did Judge Shepard rule with respect to voluntary? With respect to the company

. Well with respect to voluntary, Judge Shepard's ruling was that we rebutted any state court fine under by clear and convincing evidence and that in any event that part of her finding and part of what Lambert says is appropriate when you look at 2254E1, the clear and convincing section of the statute. It's whether the state court proceedings were fair, whether it was a hearing, whether the facts were actually developed and burnt by the state court. And in that regard, she found that that proceeding was not fundamentally fair. And even with deference, those fact findings are rebutted by clear and convincing evidence. The evidence showing that, and it's a very simple concept, what motivated Mr. Faking, what he's believed that he would be harmed and that members of his family would be harmed. And remember, within a year earlier, that this proceeding story had been triggered. And the things that Mr. Faking said about what happened to him, and I won't go into all the facts because you're not on his record. You're not just going to have read the record, but this is a case where there is a prior report from the county prison when Mr. Faking was arrested relating that he has been beaten by guards and that he had a post-traumatic symptom of the tombs. And so what your department found is that Mr. Faking's testimony about what he believed, what his perceptions were, and why he was waving. And if that was not voluntary, not made with open eyes, not made intelligently and none, all of the key words that you have in any voluntary case, they don't apply here. His motivation was not knowing intelligent, voluntary waiver. Judge Shapiro found Dr. O'Brien, the county wants her fundamental health practitioner, not credible. She found Dr. Bernstein, our mental health practitioner, credible, and she did exactly what Trier facts do. She looked at all the evidence and she said applying the clear and convincing standard, giving the county what the benefit of the doubt in the words, even so the presumption of correctness has been the public. And so the reality of it is, if what you had before the court was simply the waiver issued as to procedural default, clearly that is an issue that should be ruled by Mr. Faking's favor. I will end the conversation here. Judge M. Rueber, before we go on to ask that you address whether a state court waiver can affect a federal case review. Judge Henry took the words right out of my mouth. No, it cannot. There's only one case that arguably is in the ballpark and that's the 11th Circuit case that the county won't cite at the outlet case. That's a case for the 11th Circuit, assume for the sake of argument that such a thing is possible and went to merch. And then went out to the merits and concluded that he had to wait and also concluded that he had to wait. That's not a binding precedent by any stretch on this court. There is no other case along those lines. And properly so, federal hippie's corpus is a federal right. Federal hippie's corpus is something that you would not normally waive in another form. The guilty police situation, Judge Smith. Why not? Why wouldn't you? A defendant will use all kinds of federal constitution rights and of course a guilty pick-up. Yes, but so why not? There is no case that says that they all understand there's no case but I'm trying to find the logic behind this position because I'm drawing upon that analogy. I'm trying to find then what differences there are here, especially given the fact that it will always be an Article III court that determines whether or not the habeas right was waived in the first place. On the other hand, from a policy standpoint, it would seem to me that any declaration that there can be no waiver of federal collaborative review can only have the effect of dissuading prosecutors from entering into play agreements. You make a lot of sense conceptually. You absolutely do but that's not. And what do you know and then that occurs? I know it well. And as you're saying goes, even the blind hog can find an equal in everything. He's just quoting his wife. Judge Smith, the point however is even we take all that that makes a lot of sense

. It doesn't apply. But we never, we're never going to have to reach this issue of whether or not the federal rights have been waived if we find that the whole process would be in front of them. The one they reasonable find the reason number one and then one footnote to that if you were to have a waiver of federal rights, some judge somewhere would have to say there is a waiver of federal rights. Judge Savel never said that. The Pennsylvania's a pay board member said that in two separate appeals and certainly Judge Shapiro found the opposite of that. So not only do you conceptually it could be whatever it is, but you don't have any court ever ratifying such a waiver. Well, it is the same court. In this case, say that he waived is also his habeas rights. There's no Supreme Court opinion that says that's contrary to that. That says that we have to, you know, that that the state court was wrong. There's no Supreme Court opinion that it's not the same. So therefore don't we have to respect those state courts finding in that regard that they look that it's factually any way to his habeas rights. I would say Judge Cowan although maybe we're a little far feel given the court of what's before the court, but that no you wouldn't apply that type of that analysis because the question of whether they're a Supreme Court case that controls is, is not a question that goes to procedural issues. That's something that goes to whether a claim for relief, a substantive claim, is something that can be ruled out of the defendant's favor. This is a procedural issue which is traditionally determined independently by the federal courts and the statute itself is the court. There's Judge Javari laid out in in Kristen. Very clearly it's talking about claims, not about this procedural stuff. This procedural stuff is still done the traditional way district judges did it even before the yet, but let me throw out just a couple more concepts in the ballpark of procedural default. And as Murray did not argue, but it might even simplify things even further. Ultimately what the Pennsylvania Supreme Court did in this case is to apply the time mark. Ultimately it applied a procedural default rule that this court has already found, branching in the Taylor several cases, to be not inadequate bar. It is because, and that's significant here for several reasons. One is in hallway this court held that you look at the bar and that the state court actually applied. Since ultimately the bar, the Pennsylvania Supreme Court applied, it is not an inadequate bar. The whole waiver argument could be almost academic. It's not, I don't think, because we want on it. I think you're on a shit of firm. But given that there's an unnotated bar that's the bar that the court's ultimately put on this case, there's no adequate bar to begin with. You're winning only gets you to the merits. Yes, and that's what I want to go to. I'll just start with the confession claim. Yes, yes, right. I will say that on the merits before Beard first is banks, the penalty phase merit would be a lot easier in this case. But as to the statements claim, I'm glad you brought that up, Joe Jambo. That's the claim that I wanted to devote the core of my presentation to. This case has valid mental health related ineffective assistance of counsel issues as to the penalty phase that are still pending in the district court. My suggestion is, and then Shapiro is going to have to look at that. My suggestion is that when Judge Shapiro does that, the true honors permit her to also look at the ineffective assistance of counsel as it related to the confession with more care. Why can't we make that determination with that agreement? But I think ultimately this claim is going to need an evidentiary here and let me tell you why I say so. I think you already make that determination. In Shapiro, it actually ruled that the heir ultimately, that the heir was harmless. And in a moment I'll show you another one. That is what can't we make that determination? Yeah, why can't we have that? Absolutely. If you think the heir is harmless, you know, the ball ends up with, but as I'm going to tell you in two minutes, this heir is not harmless. It's not harmless. In this specific come tours of this case. But let me jump to that actually. And then I'll come back to what I wanted to talk about the validity of the confession itself. This heir is not harmless because, well, for starters, when you look at his rubinos closing argument at the trough phase, she argues for 31 pages. 15 of those relate to this confession. When you look at my friend, his mother's brief to this court, there are five pages in the statement of facts. From page 15 to page 20, page 15, 16, 17, and 18, all relate to this confession. Jens Shapiro ruled that the heir ultimately would be deemed harmless because Mr. Fakie confessed, quote unquote, to his girlfriend. And because there were circumstantial evidence that showed that he was present at the scene of the uranway afterwards, and I won't go into all the details. Surely there were circumstantial evidence. What Shapiro missed, however, and the reason that the harmlessness should not be applied to this issue is that the question isn't, did he do it? It's a question of degrees. It's a question of his Mr. Fakie guilty in a trial without the confession of first degree murder, or could this jury that was already inclined, just from looking at him, to think that he had some kind of problem, because they found extreme disturbance at the penalty phase, could this jury have said, no, it's second degree. And second degree, as your audience know, means a life sentence, and pencil it. It's a pretty serious conviction. Could this jury under the instructions have said, no, there's no evidence of specific intent here, sufficient for first degree murder conviction, and so we will use the rape to supplant the intent element and convict him on the second degree. That's the real harmless element analysis here. The confession to his girlfriend is three words. I did it. Mr. Fakie said to her on the telephone from the police station. The indistinguish, the sacred somehow undermined the weight of the confession. I don't get your point. The point is that even if just Shapiro is right, but it's a harmless error, Mr. Fakie did, as he told his girlfriend. That doesn't mean that necessarily the jury would find that he did it with some specific intent, sufficient for a first degree murder conviction, or the jury had the option of saying, yes, he did it. It's a rape. It's a felony murder. Second, how? Is not a pencil made by the jury permitted to infer the other evidence? The mouse? Yes. Yes. Those facts are graphically in the record in various ways. Graphically in the record to a jury that already thinks that this man from seeing, they thought he had a problem. They said that at the penalty phase. They said that when they found an extreme disturbance. It was one of the many kinds of circumstances. The real harmless error issue, so to speak, the one that Shapiro did not address in her opinion, it's a very thorough opinion, but she just missed this. Is it harmless as to the degree of guilt? Is it harmless if you exclude the confession, can it be said that the confidence befitting a disposition of a capital case? This during would have convicted a specific intent, first degree murder, no matter what. And that was finally... Don't you have to show that the state court concluded that the confession was lawfully obtained? Yes. So then, don't you have to show that that was an unreasonable application clearly established for the law? Yes. Yes, so let me go back to.

. In this specific come tours of this case. But let me jump to that actually. And then I'll come back to what I wanted to talk about the validity of the confession itself. This heir is not harmless because, well, for starters, when you look at his rubinos closing argument at the trough phase, she argues for 31 pages. 15 of those relate to this confession. When you look at my friend, his mother's brief to this court, there are five pages in the statement of facts. From page 15 to page 20, page 15, 16, 17, and 18, all relate to this confession. Jens Shapiro ruled that the heir ultimately would be deemed harmless because Mr. Fakie confessed, quote unquote, to his girlfriend. And because there were circumstantial evidence that showed that he was present at the scene of the uranway afterwards, and I won't go into all the details. Surely there were circumstantial evidence. What Shapiro missed, however, and the reason that the harmlessness should not be applied to this issue is that the question isn't, did he do it? It's a question of degrees. It's a question of his Mr. Fakie guilty in a trial without the confession of first degree murder, or could this jury that was already inclined, just from looking at him, to think that he had some kind of problem, because they found extreme disturbance at the penalty phase, could this jury have said, no, it's second degree. And second degree, as your audience know, means a life sentence, and pencil it. It's a pretty serious conviction. Could this jury under the instructions have said, no, there's no evidence of specific intent here, sufficient for first degree murder conviction, and so we will use the rape to supplant the intent element and convict him on the second degree. That's the real harmless element analysis here. The confession to his girlfriend is three words. I did it. Mr. Fakie said to her on the telephone from the police station. The indistinguish, the sacred somehow undermined the weight of the confession. I don't get your point. The point is that even if just Shapiro is right, but it's a harmless error, Mr. Fakie did, as he told his girlfriend. That doesn't mean that necessarily the jury would find that he did it with some specific intent, sufficient for a first degree murder conviction, or the jury had the option of saying, yes, he did it. It's a rape. It's a felony murder. Second, how? Is not a pencil made by the jury permitted to infer the other evidence? The mouse? Yes. Yes. Those facts are graphically in the record in various ways. Graphically in the record to a jury that already thinks that this man from seeing, they thought he had a problem. They said that at the penalty phase. They said that when they found an extreme disturbance. It was one of the many kinds of circumstances. The real harmless error issue, so to speak, the one that Shapiro did not address in her opinion, it's a very thorough opinion, but she just missed this. Is it harmless as to the degree of guilt? Is it harmless if you exclude the confession, can it be said that the confidence befitting a disposition of a capital case? This during would have convicted a specific intent, first degree murder, no matter what. And that was finally... Don't you have to show that the state court concluded that the confession was lawfully obtained? Yes. So then, don't you have to show that that was an unreasonable application clearly established for the law? Yes. Yes, so let me go back to... I was jumping ahead to the harmlessness issue because that was the old question which Colin posed about, doesn't matter at all. But it's first got to be a proper. It's first got to be unlawfully obtained before you get a brief. Yes, and when you were just discussing. And then going back to unlawfully obtained, I ask you to remember of the Supreme Court's holdings in Moran versus Burbot and Fair versus Michael C. And then there's B. There's the concept that the case is called knowing intelligent waiver and that has to do as the Supreme Court said in Fair versus Michael C. And then there's the definition of the lawfully obtained in Moran. It has to do with the educational background of the defendant, the defendant's understanding and the defendant's mental state. Those are the two components. What happened here is you have an ineffectiveness claim because that's the core of our challenge, the confession, where the counsel put on Mr. Fahy at the suppression hearing to say that he was tricked into signing the papers. But there's absolutely nothing, nothing, nothing to develop and present evidence as to what's wise to be as to the knowing and intelligent nature of what the defendant was. Why counsel didn't introduce that evidence? At the hearing that Judge Sable conducted on the ineffective assistance of counsel at the penalty phase, Mr. Green, the lawyer said, and I've got to tell you what the evidence is in the moment because it's significant. But he said he never looked at the prior mental health reports and they include competency evaluations in these very cases that were pending before the court. Never looked at them, never read them, never thought about them, never used them, should have used them, made a mistake and not used them. That's Mr. Green's testimony. From that testimony, Judge Sable found, from that testimony, Judge Sable found Mr. Green had those records. And if you were to give reference to Judge Sable's findings, it makes Mr. Fahy's claim even better. Because that would mean that Mr. Green had records that within five days of when he was arrested, he was arrested on January 29th. On February 3rd, there's a report from Dr. Wainwright at the prison that talked about Mr. Fahy being in terror, hallucinating, having a post-traumatic reaction and being not in control of himself. That's within five days of the arrest. Counsel had that report from Dr. Wainwright and you have that report in the supplemental appendix. If you look at volume six of the supplemental appendix that we've provided to your honor, all of these reports that I'm going to refer to were laid out in here. Counsel, if you take Judge Sable's ruling at face value and I invite the court to do that, would mean the counsel had a report from Dr. Stanton and another report from Dr. Camille. One of them conducting a competency evaluation in this case that had been ordered by the court. So Judge Sable was not without any evidence on this case. What? Any professional. This is not a suppression hearing. This is at the PCRA hearing on ineffective assistance of counsel. At the suppression hearing, he was without any evidence. At the suppression hearing, counsel never developed and presented any of this stuff that I'm telling you right or something. To face a content that he would have given completely different testimony as to the confession. It was different on the slide

.. I was jumping ahead to the harmlessness issue because that was the old question which Colin posed about, doesn't matter at all. But it's first got to be a proper. It's first got to be unlawfully obtained before you get a brief. Yes, and when you were just discussing. And then going back to unlawfully obtained, I ask you to remember of the Supreme Court's holdings in Moran versus Burbot and Fair versus Michael C. And then there's B. There's the concept that the case is called knowing intelligent waiver and that has to do as the Supreme Court said in Fair versus Michael C. And then there's the definition of the lawfully obtained in Moran. It has to do with the educational background of the defendant, the defendant's understanding and the defendant's mental state. Those are the two components. What happened here is you have an ineffectiveness claim because that's the core of our challenge, the confession, where the counsel put on Mr. Fahy at the suppression hearing to say that he was tricked into signing the papers. But there's absolutely nothing, nothing, nothing to develop and present evidence as to what's wise to be as to the knowing and intelligent nature of what the defendant was. Why counsel didn't introduce that evidence? At the hearing that Judge Sable conducted on the ineffective assistance of counsel at the penalty phase, Mr. Green, the lawyer said, and I've got to tell you what the evidence is in the moment because it's significant. But he said he never looked at the prior mental health reports and they include competency evaluations in these very cases that were pending before the court. Never looked at them, never read them, never thought about them, never used them, should have used them, made a mistake and not used them. That's Mr. Green's testimony. From that testimony, Judge Sable found, from that testimony, Judge Sable found Mr. Green had those records. And if you were to give reference to Judge Sable's findings, it makes Mr. Fahy's claim even better. Because that would mean that Mr. Green had records that within five days of when he was arrested, he was arrested on January 29th. On February 3rd, there's a report from Dr. Wainwright at the prison that talked about Mr. Fahy being in terror, hallucinating, having a post-traumatic reaction and being not in control of himself. That's within five days of the arrest. Counsel had that report from Dr. Wainwright and you have that report in the supplemental appendix. If you look at volume six of the supplemental appendix that we've provided to your honor, all of these reports that I'm going to refer to were laid out in here. Counsel, if you take Judge Sable's ruling at face value and I invite the court to do that, would mean the counsel had a report from Dr. Stanton and another report from Dr. Camille. One of them conducting a competency evaluation in this case that had been ordered by the court. So Judge Sable was not without any evidence on this case. What? Any professional. This is not a suppression hearing. This is at the PCRA hearing on ineffective assistance of counsel. At the suppression hearing, he was without any evidence. At the suppression hearing, counsel never developed and presented any of this stuff that I'm telling you right or something. To face a content that he would have given completely different testimony as to the confession. It was different on the slide. Have done, had you been representing him? Have you ever contend that he would have given completely different testimony? I did not do it. The answer to what we've pledged that a reasonable counsel would have developed the evidence in form, Mr. Fahie, and presented it. Now, there hasn't been a hearing, so in fact, finding to answer your honor's question, we don't have. But point is, we've pledged, we submitted to the court that had it being represented by reasonable counsel. The whole counter of the trial would have been different. You wouldn't have put Mr. Fahie on, even at the suppression hearing, if you had real mental health evidence to provide it. Well, the question is, what, assuming there's ineffectiveness, the second prong of Strickland, the prejudice, how, the question is, if he had presented this, how would that, anything, be presented? Well, I failed to do so, in this case, you claim. Where is the prejudice when the evidence was there that he confessed for purposes of the judge viewing him, there was no reason to put in a claim of incompetence, insanity, or whatever, in the first place. So, where is the, assuming that there's ineffectiveness, where is the second prong, if he had this evidence, and he didn't use it? Yes, yes. Isn't the second prong that you would have to convince us that Judge Sable would have concluded that it's a crime? That's a statement. We would have to convince Judge Sable. On the Strickland, there are reasonable fact-finder. There's a reasonable possibility. There's a reasonable, objective fact-finder sitting in Pennsylvania at this time, that there's a reasonable likelihood that they could have served him. Just tell the evidence, you know. Yes. Okay? Yeah, but the only one that you have, whether or not getting back to the first prong, whether it was ineffective for counsel in the first place to claim on the penalty phase, that he didn't do it. Well, the penalty phase is not before the court, but that wasn't exactly the counsel that did it. The penalty phase? He was not the best way to claim it. He was not the best way to claim it. He was not the best way to claim it. The Judge's expression. If all of the evidence was put in, it wasn't put in by counsel with respect to psychiatric reports, how would that have shown that he was coerced in beginning that confession? Except that right. The answer to that, the simplest way to answer that. I mean, I can recite to her on a bunch of cases about whether somebody's acting reasonably with open eyes, understanding. But it's just relevant. I'm assuming it's our element. Look at what the Pennsylvania Supreme Court said on direct appeal. They said, and really from the direct appeal in 3-11, the test is whether there was sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it. This is during the context of a confession. The duty of the suppression court is to determine whether the Commonwealth has established by the ponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing an intelligent. The question for your honors is, can you confidently conclude? That's what Strickland talks about. Can you confidently conclude that it would have not been suppression if the court that's applying that standard? Obviously, Judge your viral confidently concluded. The point is, if all of that evidence came in, how was he still coerced? Let's assume that was in the state. How was he coerced? In the best of that comparison. That's right. That's why I was trying to explain it to the outside. It doesn't show coerced in the whole idea of, under Miranda, is that police interrogation is inherently coercive. And so you do two things. Under A, you look at the point in whether there was coerced. Strick, they gave him his right hand to write. And per A sign. For purposes of my presentation to your honors, forget about coercion for a moment

. Have done, had you been representing him? Have you ever contend that he would have given completely different testimony? I did not do it. The answer to what we've pledged that a reasonable counsel would have developed the evidence in form, Mr. Fahie, and presented it. Now, there hasn't been a hearing, so in fact, finding to answer your honor's question, we don't have. But point is, we've pledged, we submitted to the court that had it being represented by reasonable counsel. The whole counter of the trial would have been different. You wouldn't have put Mr. Fahie on, even at the suppression hearing, if you had real mental health evidence to provide it. Well, the question is, what, assuming there's ineffectiveness, the second prong of Strickland, the prejudice, how, the question is, if he had presented this, how would that, anything, be presented? Well, I failed to do so, in this case, you claim. Where is the prejudice when the evidence was there that he confessed for purposes of the judge viewing him, there was no reason to put in a claim of incompetence, insanity, or whatever, in the first place. So, where is the, assuming that there's ineffectiveness, where is the second prong, if he had this evidence, and he didn't use it? Yes, yes. Isn't the second prong that you would have to convince us that Judge Sable would have concluded that it's a crime? That's a statement. We would have to convince Judge Sable. On the Strickland, there are reasonable fact-finder. There's a reasonable possibility. There's a reasonable, objective fact-finder sitting in Pennsylvania at this time, that there's a reasonable likelihood that they could have served him. Just tell the evidence, you know. Yes. Okay? Yeah, but the only one that you have, whether or not getting back to the first prong, whether it was ineffective for counsel in the first place to claim on the penalty phase, that he didn't do it. Well, the penalty phase is not before the court, but that wasn't exactly the counsel that did it. The penalty phase? He was not the best way to claim it. He was not the best way to claim it. He was not the best way to claim it. The Judge's expression. If all of the evidence was put in, it wasn't put in by counsel with respect to psychiatric reports, how would that have shown that he was coerced in beginning that confession? Except that right. The answer to that, the simplest way to answer that. I mean, I can recite to her on a bunch of cases about whether somebody's acting reasonably with open eyes, understanding. But it's just relevant. I'm assuming it's our element. Look at what the Pennsylvania Supreme Court said on direct appeal. They said, and really from the direct appeal in 3-11, the test is whether there was sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it. This is during the context of a confession. The duty of the suppression court is to determine whether the Commonwealth has established by the ponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing an intelligent. The question for your honors is, can you confidently conclude? That's what Strickland talks about. Can you confidently conclude that it would have not been suppression if the court that's applying that standard? Obviously, Judge your viral confidently concluded. The point is, if all of that evidence came in, how was he still coerced? Let's assume that was in the state. How was he coerced? In the best of that comparison. That's right. That's why I was trying to explain it to the outside. It doesn't show coerced in the whole idea of, under Miranda, is that police interrogation is inherently coercive. And so you do two things. Under A, you look at the point in whether there was coerced. Strick, they gave him his right hand to write. And per A sign. For purposes of my presentation to your honors, forget about coercion for a moment. But you look at on waiver, on waiver of Miranda rights, whether that waiver was knowing intelligent and done with open eyes. And when you do that, you look at evidence that within days of his arrest and then prior to the trial, they were findings in this record that he hallucinated, that he had thought broadcasting, that he had memory difficulties, dementia, organic brain damage, severe depression, intellectual impairment, auditory. Linda, at ten minutes, are we getting this way? Thank you, Linda. Auditorial hallucinations, seizures, inside impairments, judgment impairments, that he had depressive and emotionally unstable elements. All of that is in the reports that either counsel never got, because they're the reports in this case, if you take his testimony at face value, or if you take Judge Sebel's finding that he had, and he never presented it in the suppression here. But even as a psychiatrist, for example, who said that he had, you know, his only personality disorder. Didn't he also find that he did not have a major mental illness that would affect his ability to wave? All of the doctors said Mr. Vain, he did not have a major mental illness and a pretty trial site. Yes. And even a major mental illness would not, as a matter of law, stand in the way of a determination of our turn. We know that. That's a pretty good one. Not necessarily. And just, I guess, let me take a step back and say the thing I should have said at the outset, if you would agree with us as to harmless error, then the issue before the court really is, is what we've given you, sufficient as a proffer for Judge Shapiro to hold a hearing on whether counsel was ineffective for failing to use this evidence at the suppression hearing. That's the real issue before the court. Because the ineffective assistance of counsel for failing to develop the evidence at the suppression hearing has never been addressed by the state courts in any way whatsoever. The Pennsylvania Supreme Court never addressed it on direct appeal. They just relied on the evidence that counsel, we have submitted, ineffectively developed. Post conviction, the Pennsylvania Supreme Court never dealt with the actual ineffectiveness issue because they used the way. And let me tell you from a moment what Judge Savo said. Judge Savo, who a lot of hearing only an ineffective assistance of counsel at the penalty phase, he did not hold the hearing on this issue. But even so, he then went on to it. And it's interesting, just as a footnote, when you read Judge Savo's order and he lists him, beginning the issues that counsel raised, the ineffective assistance you're failing to present the confession isn't one of them. But he then goes on and dresses it at the end anyway. And this is what he says. What he says is, trial counsel did present evidence that the defendant had mental problems. But the thrust of counsel's motion was that the police tricked the defendant into signing a blank form on which the police wrote the confession. Defendants, suppose, mental problems, had little, if anything, to do with this alleged bruise. And so look at the circularity of Judge Savo's findings and hold that against the statute. What he's saying is the lawyer argued that Mr. Fahey was tricked into making his confession. Did he sign the blank form? You want us to call it the evidence? Well, there's a suppression here. The evidence of the mental health problem. Defending was that you did not sign blank forms. Is that correct? Yes. Yes. The evidence of Mr. Fahey's, Judge Savo, that rules. The evidence of Mr. Fahey's mental problems would not have shown that he was tricked into signing the blank form. That circular ruling by Judge Savo doesn't address this claim, especially so because he didn't hold the hearing on it in the first place. So all we're saying is when you look at Mr. Fahey's history, when you look at what that evidence is, we submit, we give in your honors enough, that when this case gets remanded to Judge Shapiro for disposition of the penalty-fesishes, which is something the party's agreed needs to happen, we urge that you also say, look at this confession issue and hold the hearing on it. What if you were in your remaining time address, the trial transcripts in conjunction with that sort of.

. But you look at on waiver, on waiver of Miranda rights, whether that waiver was knowing intelligent and done with open eyes. And when you do that, you look at evidence that within days of his arrest and then prior to the trial, they were findings in this record that he hallucinated, that he had thought broadcasting, that he had memory difficulties, dementia, organic brain damage, severe depression, intellectual impairment, auditory. Linda, at ten minutes, are we getting this way? Thank you, Linda. Auditorial hallucinations, seizures, inside impairments, judgment impairments, that he had depressive and emotionally unstable elements. All of that is in the reports that either counsel never got, because they're the reports in this case, if you take his testimony at face value, or if you take Judge Sebel's finding that he had, and he never presented it in the suppression here. But even as a psychiatrist, for example, who said that he had, you know, his only personality disorder. Didn't he also find that he did not have a major mental illness that would affect his ability to wave? All of the doctors said Mr. Vain, he did not have a major mental illness and a pretty trial site. Yes. And even a major mental illness would not, as a matter of law, stand in the way of a determination of our turn. We know that. That's a pretty good one. Not necessarily. And just, I guess, let me take a step back and say the thing I should have said at the outset, if you would agree with us as to harmless error, then the issue before the court really is, is what we've given you, sufficient as a proffer for Judge Shapiro to hold a hearing on whether counsel was ineffective for failing to use this evidence at the suppression hearing. That's the real issue before the court. Because the ineffective assistance of counsel for failing to develop the evidence at the suppression hearing has never been addressed by the state courts in any way whatsoever. The Pennsylvania Supreme Court never addressed it on direct appeal. They just relied on the evidence that counsel, we have submitted, ineffectively developed. Post conviction, the Pennsylvania Supreme Court never dealt with the actual ineffectiveness issue because they used the way. And let me tell you from a moment what Judge Savo said. Judge Savo, who a lot of hearing only an ineffective assistance of counsel at the penalty phase, he did not hold the hearing on this issue. But even so, he then went on to it. And it's interesting, just as a footnote, when you read Judge Savo's order and he lists him, beginning the issues that counsel raised, the ineffective assistance you're failing to present the confession isn't one of them. But he then goes on and dresses it at the end anyway. And this is what he says. What he says is, trial counsel did present evidence that the defendant had mental problems. But the thrust of counsel's motion was that the police tricked the defendant into signing a blank form on which the police wrote the confession. Defendants, suppose, mental problems, had little, if anything, to do with this alleged bruise. And so look at the circularity of Judge Savo's findings and hold that against the statute. What he's saying is the lawyer argued that Mr. Fahey was tricked into making his confession. Did he sign the blank form? You want us to call it the evidence? Well, there's a suppression here. The evidence of the mental health problem. Defending was that you did not sign blank forms. Is that correct? Yes. Yes. The evidence of Mr. Fahey's, Judge Savo, that rules. The evidence of Mr. Fahey's mental problems would not have shown that he was tricked into signing the blank form. That circular ruling by Judge Savo doesn't address this claim, especially so because he didn't hold the hearing on it in the first place. So all we're saying is when you look at Mr. Fahey's history, when you look at what that evidence is, we submit, we give in your honors enough, that when this case gets remanded to Judge Shapiro for disposition of the penalty-fesishes, which is something the party's agreed needs to happen, we urge that you also say, look at this confession issue and hold the hearing on it. What if you were in your remaining time address, the trial transcripts in conjunction with that sort of... Yes, I'm sorry. ...that we were in the prosecutor's office. What we asked for, the main thing we've asked for all along was that it was a proceeding to reconstruct the record. And those are done off and in Jones versus Love, Judge Dalzel did that just recently. It's something that's done, reconstruction of the records. Judge Shapiro, sorry, but rarely from scratch and rarely without some specific showing, where is there anywhere in the papers a suggestion of some specific error that occurred? That's question one. Question two is, is there anything in the record from trial and appellate counsel about specific errors that occurred during the June of the jury selection stage, and if not why not, because I understand it to be have been consulted about other matters? It's a trial and appellate counsel where both Mr. Green and what is in the record is what I told Judge Shapiro is that we made efforts to get the transcript and to talk to prior counsel about it and those efforts were unsuccessful. He isn't necessarily correct that our caravan decision makes it pre-tubbering. Caravan says show me. Show us why you need this transcript. That has to be more than, because I might be able to find something. I wish it wasn't, but it is more. So what are you offering? Sure. And what we're offering you is a batson claim. And a batson claim that has something to it. It has something to it because you're a lot. But a batson claim that is pre-powers for your heart. That's the legal issue before the court. And if we, if we, let me... The first though I guess maybe the first question is, do you really have a batson claim? Yes. If we have a batson claim, then your honor should allow reconstruction, because then we shall need, obviously, need to reconstruct. I'm a part of some statistics in this record about racial composition that might suggest a batson claim to us. We have not let anything from the blood there be, again, it's the circularity of it, because we don't have that. There's nothing such as to get a hold of that we can say. There is some probability or even possibility that this specific event occurred, did not occur during the year. Am I correct? We've urged you to take an inference from historical facts, but the answer to you directly isn't up there. We don't have anything specific. And if we raise this in this case, then it would have to be in any case, which, the petitioner comes forward with a claim, but no affirmative showing. With the claim that has what we think is support. And the support is the historical information and the information about general practice in Philadelphia County that we play in the details. But general practice, pursuant to the Pennsylvania rules, in fact, did not require the board here to be transcribed at that time. Isn't that correct? So, nothing untworn happened here in that regard, right? Correct. If a duty was upon Mr. Grimm to order the transcribed claim, if it's, of course, he saw some issue that might have made availability of the transcribed to him of some value for a ballot purpose. Yes. Yes, I mean, you know, we have several ineffectiveness issues as to Mr. Grimm, one of which is. But Mr

.. Yes, I'm sorry. ...that we were in the prosecutor's office. What we asked for, the main thing we've asked for all along was that it was a proceeding to reconstruct the record. And those are done off and in Jones versus Love, Judge Dalzel did that just recently. It's something that's done, reconstruction of the records. Judge Shapiro, sorry, but rarely from scratch and rarely without some specific showing, where is there anywhere in the papers a suggestion of some specific error that occurred? That's question one. Question two is, is there anything in the record from trial and appellate counsel about specific errors that occurred during the June of the jury selection stage, and if not why not, because I understand it to be have been consulted about other matters? It's a trial and appellate counsel where both Mr. Green and what is in the record is what I told Judge Shapiro is that we made efforts to get the transcript and to talk to prior counsel about it and those efforts were unsuccessful. He isn't necessarily correct that our caravan decision makes it pre-tubbering. Caravan says show me. Show us why you need this transcript. That has to be more than, because I might be able to find something. I wish it wasn't, but it is more. So what are you offering? Sure. And what we're offering you is a batson claim. And a batson claim that has something to it. It has something to it because you're a lot. But a batson claim that is pre-powers for your heart. That's the legal issue before the court. And if we, if we, let me... The first though I guess maybe the first question is, do you really have a batson claim? Yes. If we have a batson claim, then your honor should allow reconstruction, because then we shall need, obviously, need to reconstruct. I'm a part of some statistics in this record about racial composition that might suggest a batson claim to us. We have not let anything from the blood there be, again, it's the circularity of it, because we don't have that. There's nothing such as to get a hold of that we can say. There is some probability or even possibility that this specific event occurred, did not occur during the year. Am I correct? We've urged you to take an inference from historical facts, but the answer to you directly isn't up there. We don't have anything specific. And if we raise this in this case, then it would have to be in any case, which, the petitioner comes forward with a claim, but no affirmative showing. With the claim that has what we think is support. And the support is the historical information and the information about general practice in Philadelphia County that we play in the details. But general practice, pursuant to the Pennsylvania rules, in fact, did not require the board here to be transcribed at that time. Isn't that correct? So, nothing untworn happened here in that regard, right? Correct. If a duty was upon Mr. Grimm to order the transcribed claim, if it's, of course, he saw some issue that might have made availability of the transcribed to him of some value for a ballot purpose. Yes. Yes, I mean, you know, we have several ineffectiveness issues as to Mr. Grimm, one of which is. But Mr. Grimm, what's going to be important is that if we agree with you on this, then we'd have to agree on it, because about any case, where a claim was made. I don't, I'll tell you why I don't think so, because I think in this case we have made a showing, we presented to you evidence generally about Philadelphia in the batsen area. That's general evidence in any Philadelphia case. That would open it up to any claim. If Judge Gowin, if you don't think that that's what we got, if you don't think that's good enough, we don't have more to do. I'm asking you why is it good enough? I'm not making it into an issue, because a reasonable person looking at that evidence about the historical practice in Philadelphia County, in the fact that this court in four cases and several additional district court cases, and several cases from the Pennsylvania courts of common pleas and the Pennsylvania Supreme Court have all said, there was a batsen area in these trials. This was a practice at the time. That's enough to say to a reasonable person, well maybe we should allow a reconstruction here in this case. I'm in it in a half, let me talk about powers, because you brought it up, Judge Ambrou, and it's simplest. At the core, simplest level, batsen said there's two things to consider. One is the fairness to the defendant, and secondly is the equal protection rights of the jurors. Powers said there are two things to consider, fairness to the defendant, and the equal protection rights of the jurors. Those homelands, when you put them side by side, are not the same. The powers extended batsen to defendants challenging the exclusion of jurors of another race. That's what you have here, but powers has not been made retroactive. By any court of the defense, has it? Correct. I could find a single one. There are at least four that have refused. I can't find a single one. You've got to convince us that it gives us a new rule, don't you? We have to convince you that powers was dictated by batsen. And for the reasons we laid out in the brief, powers was dictated by batsen. They applied the same criteria, fairness to the jurors. The powers was a third party standing case. Yes, sir. Does that place miles away from batsen? No, because in looking at third party standing under the Tegan analysis, you're not only locked into looking at batsen and the powers itself. You also look at what was the third party standing law before powers? And clearly third party standing law. But even there, there are four circuits, the seventh, the ninth, the tenth, and the eleventh, that hold that batsen does not apply to different race situations. Yes, they do. And those circuits, is there any circuit court that has gone your way? There is the citations and the argument presented in our brief, but we don't have a circuit court case that we can rely on. I will say as to those circuit court cases, just one final comment. And the final comment is that all of those cases ignored the fact, did not give sufficient heat to the fact that in batsen itself, the courts said, that look at the rights of the jurors and the defendant in a criminal case can bring the batsen claim to protect the rights of the jurors, which is what power is really based on. And once you look at it that way, there's an argument to be made under T and the movement in the race. Unless your honors have further questions, I thank you very much, Your Honor. Thank you. Thank you very much. Is Murray? And I probably will hold you for about 10 minutes for the rebuttal. I'd like you to answer very quickly for my good. The argument of counsel, your friend, crossing high. Why, the ineffective assistance aspect of the mental health and state of the petitioner? Why should that be remanded to Judge Shapiro? My position, Your Honor, is that it should not be. Assuming those ineffective assistance, why is there also prejudice in counsel not bringing that forward? As a Judge Shapiro correctly noted in finding that there was no room in his air, even if the confession was admitted at trial, and of course the court found that Judge Shapiro found nothing wrong with the confession, no basis for its suppression. The evidence in this case, even aside from the confession, is overwhelming. They not only confess to his girlfriend, he confessed to his mother. He led the police to the knife, which he used to stab the 12-year-old minor victim 18 times in the chest. He led the police to that, he threw it in a cell and he led them to it. The noble host of the law is his position

. Grimm, what's going to be important is that if we agree with you on this, then we'd have to agree on it, because about any case, where a claim was made. I don't, I'll tell you why I don't think so, because I think in this case we have made a showing, we presented to you evidence generally about Philadelphia in the batsen area. That's general evidence in any Philadelphia case. That would open it up to any claim. If Judge Gowin, if you don't think that that's what we got, if you don't think that's good enough, we don't have more to do. I'm asking you why is it good enough? I'm not making it into an issue, because a reasonable person looking at that evidence about the historical practice in Philadelphia County, in the fact that this court in four cases and several additional district court cases, and several cases from the Pennsylvania courts of common pleas and the Pennsylvania Supreme Court have all said, there was a batsen area in these trials. This was a practice at the time. That's enough to say to a reasonable person, well maybe we should allow a reconstruction here in this case. I'm in it in a half, let me talk about powers, because you brought it up, Judge Ambrou, and it's simplest. At the core, simplest level, batsen said there's two things to consider. One is the fairness to the defendant, and secondly is the equal protection rights of the jurors. Powers said there are two things to consider, fairness to the defendant, and the equal protection rights of the jurors. Those homelands, when you put them side by side, are not the same. The powers extended batsen to defendants challenging the exclusion of jurors of another race. That's what you have here, but powers has not been made retroactive. By any court of the defense, has it? Correct. I could find a single one. There are at least four that have refused. I can't find a single one. You've got to convince us that it gives us a new rule, don't you? We have to convince you that powers was dictated by batsen. And for the reasons we laid out in the brief, powers was dictated by batsen. They applied the same criteria, fairness to the jurors. The powers was a third party standing case. Yes, sir. Does that place miles away from batsen? No, because in looking at third party standing under the Tegan analysis, you're not only locked into looking at batsen and the powers itself. You also look at what was the third party standing law before powers? And clearly third party standing law. But even there, there are four circuits, the seventh, the ninth, the tenth, and the eleventh, that hold that batsen does not apply to different race situations. Yes, they do. And those circuits, is there any circuit court that has gone your way? There is the citations and the argument presented in our brief, but we don't have a circuit court case that we can rely on. I will say as to those circuit court cases, just one final comment. And the final comment is that all of those cases ignored the fact, did not give sufficient heat to the fact that in batsen itself, the courts said, that look at the rights of the jurors and the defendant in a criminal case can bring the batsen claim to protect the rights of the jurors, which is what power is really based on. And once you look at it that way, there's an argument to be made under T and the movement in the race. Unless your honors have further questions, I thank you very much, Your Honor. Thank you. Thank you very much. Is Murray? And I probably will hold you for about 10 minutes for the rebuttal. I'd like you to answer very quickly for my good. The argument of counsel, your friend, crossing high. Why, the ineffective assistance aspect of the mental health and state of the petitioner? Why should that be remanded to Judge Shapiro? My position, Your Honor, is that it should not be. Assuming those ineffective assistance, why is there also prejudice in counsel not bringing that forward? As a Judge Shapiro correctly noted in finding that there was no room in his air, even if the confession was admitted at trial, and of course the court found that Judge Shapiro found nothing wrong with the confession, no basis for its suppression. The evidence in this case, even aside from the confession, is overwhelming. They not only confess to his girlfriend, he confessed to his mother. He led the police to the knife, which he used to stab the 12-year-old minor victim 18 times in the chest. He led the police to that, he threw it in a cell and he led them to it. The noble host of the law is his position. He recognized all my evidence. His position is a jury having, correctly being brought to their attention, the mental state and the history of the affay. He may have reasonably concluded, look, it's not first degree murder, it's second degree murder. So it's ineffective for counsel not to abort that up in the suppression or work needs to the jury in so nation. Here are even aside from the confession, the medical examiner's testimonial one would have been enough. Henry Faye stabbed this 12-year-old little girl 18 times in the chest. We know how, but when I establish a specific attempt, it's very important. Mr. Smith, excuse me, I'm a part of the body. Allow Judge's ask questions. All I was just about to say was that specific attempt was precise in the question I asked in your adversary and I saw him nodding your head when I made the point. So we know that, we can establish that much. Well, thank you, and that's my point that the confession was not the only, far from the only evidence demonstrating Faye's specific attempt to kill. He also strangled the child with various ligatures, including an electrical cord and a t-shirt. Could that be consistent with his mental state, though? Well, that's a different defense altogether, which has never been presented. Faye even took the police to the location of the murder weapon. Which I think is reflective of his mental capabilities. I mean, it's not only reflective of his mental capabilities, it is at least a piece of evidence corroborative of his role in the offense, separate in a part from any confession was placed on a paper or a made-order, isn't it? Correct, here, and I'm going further to point out that the medical evidence that was proffered even now, for that matter, the Federal and the Engineering, but also at the PCR that the Engineering was a two-day hearing and Faye actually presented a medical expert, a Dr. Temper. And Dr. Temper was not of the opinion that Henry Faye was in any way incompetent. The two three sentence doctors who evaluated in the prior to sentencing, after he was convicted, doctors came out and sat and they but found Henry Faye to be competent. In fact, their diagnosis was a severe personality disorder, but no major melanolus encountered in competent. In fact, Henry Faye's present expert, Dr. Bernstein, has never even, by at the David, profered anything suggesting that Faye was incompetent at the time he waived his Miranda rights and admitted this, the same as crime, which he also admitted to his mother and his girlfriend. In light of that, the ineffective claim was quite properly rejected by Judge Shapira. There's no basis for remand. Now, you wanted to address the sentencing and outside for the question of regard to the waiver issue. What's deal with the sentencing? You said you wanted to address that when you said down the first time. Oh, yes, just the other aspect of our appeal. I will rely on my grief with regard to the bats and powers claiming that the court has any questions. And I believe I discussed the transcript issue before. I would like to mention the other basis of our appeal. And that is the court's grant of Mills relief, of course, prior to the United States Supreme Court's decision in beer feedbacks. Of course, as the court wrote, I was in beer feedbacks, the Supreme Court held the law. I thought you and Mr. Wallace agreed that that would be your other rules. The decision here. And in light of that, I would say this same relief, that was the same remedy that was employed in Albrecht. Albrecht. Albrecht should apply. The court would either reverse or could do what it did in Albrecht and remand for denial of the Mills claim and then review of the remaining penalty phase claims. There were a number of them which, Judge Shapiro did not reach because she granted relief on the Mills claim. The only other thing I might mention is the standard of review if it's in any help to the court. Well, before you do that, I would just go back to the way of the issue

. He recognized all my evidence. His position is a jury having, correctly being brought to their attention, the mental state and the history of the affay. He may have reasonably concluded, look, it's not first degree murder, it's second degree murder. So it's ineffective for counsel not to abort that up in the suppression or work needs to the jury in so nation. Here are even aside from the confession, the medical examiner's testimonial one would have been enough. Henry Faye stabbed this 12-year-old little girl 18 times in the chest. We know how, but when I establish a specific attempt, it's very important. Mr. Smith, excuse me, I'm a part of the body. Allow Judge's ask questions. All I was just about to say was that specific attempt was precise in the question I asked in your adversary and I saw him nodding your head when I made the point. So we know that, we can establish that much. Well, thank you, and that's my point that the confession was not the only, far from the only evidence demonstrating Faye's specific attempt to kill. He also strangled the child with various ligatures, including an electrical cord and a t-shirt. Could that be consistent with his mental state, though? Well, that's a different defense altogether, which has never been presented. Faye even took the police to the location of the murder weapon. Which I think is reflective of his mental capabilities. I mean, it's not only reflective of his mental capabilities, it is at least a piece of evidence corroborative of his role in the offense, separate in a part from any confession was placed on a paper or a made-order, isn't it? Correct, here, and I'm going further to point out that the medical evidence that was proffered even now, for that matter, the Federal and the Engineering, but also at the PCR that the Engineering was a two-day hearing and Faye actually presented a medical expert, a Dr. Temper. And Dr. Temper was not of the opinion that Henry Faye was in any way incompetent. The two three sentence doctors who evaluated in the prior to sentencing, after he was convicted, doctors came out and sat and they but found Henry Faye to be competent. In fact, their diagnosis was a severe personality disorder, but no major melanolus encountered in competent. In fact, Henry Faye's present expert, Dr. Bernstein, has never even, by at the David, profered anything suggesting that Faye was incompetent at the time he waived his Miranda rights and admitted this, the same as crime, which he also admitted to his mother and his girlfriend. In light of that, the ineffective claim was quite properly rejected by Judge Shapira. There's no basis for remand. Now, you wanted to address the sentencing and outside for the question of regard to the waiver issue. What's deal with the sentencing? You said you wanted to address that when you said down the first time. Oh, yes, just the other aspect of our appeal. I will rely on my grief with regard to the bats and powers claiming that the court has any questions. And I believe I discussed the transcript issue before. I would like to mention the other basis of our appeal. And that is the court's grant of Mills relief, of course, prior to the United States Supreme Court's decision in beer feedbacks. Of course, as the court wrote, I was in beer feedbacks, the Supreme Court held the law. I thought you and Mr. Wallace agreed that that would be your other rules. The decision here. And in light of that, I would say this same relief, that was the same remedy that was employed in Albrecht. Albrecht. Albrecht should apply. The court would either reverse or could do what it did in Albrecht and remand for denial of the Mills claim and then review of the remaining penalty phase claims. There were a number of them which, Judge Shapiro did not reach because she granted relief on the Mills claim. The only other thing I might mention is the standard of review if it's in any help to the court. Well, before you do that, I would just go back to the way of the issue. The court, the Picker Court, said that Fahey weighed his picker up rights. But there was any finding that he had waved his federal habeas rights? Yes, Your Honor, to this extent. Well, the State Supreme Court said, was that he waved his right to further collateral review. Now, further collateral review encompasses both State and Federal. It was not a finding that he waved his right to PCRA or another one, just with your PCRA petition. Or he waved his right to appeal. I mean, for a long time, Fahey has been claiming that he only waved his right to appeal. That is flatly rejected by the findings of the State Court. The State Court found he waved his right to further collateral review. Now, the State Court referred back to was the State and Buy, Judge Savo, we said, all right, Mr. Fahey, I will inform the Supreme Court of Pennsylvania that you were knowingly waving all your picker up pellet rights and all your picker rights. Now, by a pellet rights, that doesn't mean habeas, right? A pellet meant, I believe you referred to a pellet rights because at the time they elected to play further review, excuse me, he was on appeal in the Pennsylvania Supreme Court from the denial of the State. The appeal stayed up there. The only thing the Supreme Court demanded was for the narrow purpose of conducting a colloquial ongoing. Correct, Your Honor. And what he waved was that appeal to the Supreme Court on the merits of all of the issues that were presented to the PCRE, a court in the third PCRE and the court conducted a two-day interview hearing. But my point is, where is there a specific waiver of federal habeas? You don't have to look to the colloquial point. And specifically, I think I read it before, he specifically says he's waving all for review because what he says is, I want to waved everything, I want to be executed immediately. So in plus and in that, it's not going to be a case of review. He was asked to be all this right hearing if he was waving attended the Wavies and Pills of Federal Courts, but picker accounts have been objective. I know that there was no federal court proceeding. There was Mr. Nolan, two inter-posed state. Then the court stated, he could chumped in and says, quote, you are not here to examine or cross-examine or anything. It's between Mr. Fei and myself who was sent down from me to decide. So I mean, Mr. Oli, he didn't get a chance. Well, the basis for my contention that Mr. Fei waved his right to federal review is grounded in the colloquial itself. He himself, of his own mouth, specifically said, I waved all that. But I wouldn't be executed immediately. It isn't Judge Ambo correct. That is the only reference anywhere in the colloquies or records of the two hearings, August to August 9. And it is as specific as it gets with respect to Hades. And that is the question that you telling me you wish to withdraw your appeal to the Pennsylvania Supreme Court and to the federal courts. That's it, isn't it? That you get any more specific than that about federal Hades. Anywhere in the record before you get sickly. Just the colloquial that's it. I mean, I don't think there's any. And I think the state court referred to collateral review. But it didn't say PCRA review. It's a collateral review. And I think implicit in the term collateral review is both state and federal. Or what have said, PCRA review? Well, it is for us lawyers, probably

. The court, the Picker Court, said that Fahey weighed his picker up rights. But there was any finding that he had waved his federal habeas rights? Yes, Your Honor, to this extent. Well, the State Supreme Court said, was that he waved his right to further collateral review. Now, further collateral review encompasses both State and Federal. It was not a finding that he waved his right to PCRA or another one, just with your PCRA petition. Or he waved his right to appeal. I mean, for a long time, Fahey has been claiming that he only waved his right to appeal. That is flatly rejected by the findings of the State Court. The State Court found he waved his right to further collateral review. Now, the State Court referred back to was the State and Buy, Judge Savo, we said, all right, Mr. Fahey, I will inform the Supreme Court of Pennsylvania that you were knowingly waving all your picker up pellet rights and all your picker rights. Now, by a pellet rights, that doesn't mean habeas, right? A pellet meant, I believe you referred to a pellet rights because at the time they elected to play further review, excuse me, he was on appeal in the Pennsylvania Supreme Court from the denial of the State. The appeal stayed up there. The only thing the Supreme Court demanded was for the narrow purpose of conducting a colloquial ongoing. Correct, Your Honor. And what he waved was that appeal to the Supreme Court on the merits of all of the issues that were presented to the PCRE, a court in the third PCRE and the court conducted a two-day interview hearing. But my point is, where is there a specific waiver of federal habeas? You don't have to look to the colloquial point. And specifically, I think I read it before, he specifically says he's waving all for review because what he says is, I want to waved everything, I want to be executed immediately. So in plus and in that, it's not going to be a case of review. He was asked to be all this right hearing if he was waving attended the Wavies and Pills of Federal Courts, but picker accounts have been objective. I know that there was no federal court proceeding. There was Mr. Nolan, two inter-posed state. Then the court stated, he could chumped in and says, quote, you are not here to examine or cross-examine or anything. It's between Mr. Fei and myself who was sent down from me to decide. So I mean, Mr. Oli, he didn't get a chance. Well, the basis for my contention that Mr. Fei waved his right to federal review is grounded in the colloquial itself. He himself, of his own mouth, specifically said, I waved all that. But I wouldn't be executed immediately. It isn't Judge Ambo correct. That is the only reference anywhere in the colloquies or records of the two hearings, August to August 9. And it is as specific as it gets with respect to Hades. And that is the question that you telling me you wish to withdraw your appeal to the Pennsylvania Supreme Court and to the federal courts. That's it, isn't it? That you get any more specific than that about federal Hades. Anywhere in the record before you get sickly. Just the colloquial that's it. I mean, I don't think there's any. And I think the state court referred to collateral review. But it didn't say PCRA review. It's a collateral review. And I think implicit in the term collateral review is both state and federal. Or what have said, PCRA review? Well, it is for us lawyers, probably. I mean, it's certainly not specific. I had the state's Supreme Court, so PCRA review. I think that you never spoke to a lawyer about it. Well, he clanky had it. And his lawyer wasn't even allowed to interpose much of the rejection. In any event, I should point to you. I think my time is up. So there was a week that the state review was thoroughly addressed in my brief. There's one point I would like to make that's possible with regard to standard of refueling. I'll give you one minute. Okay. In preparing for argument today, and I let Mr. Nollis know about this, I discovered an unpublished, I realize it's not presidential, an unpublished decision of this court on the question of whether a lower court determination, adjudication, is entitled to deference under the edhpuff. Judge Hyrow and I submit rule correctly that a lower court finding isn't adjudication on the merits. And there's no need that those issues being presented to an appellate court in order for the deference. It's about that. In Smallest Vs. Pappert, that's Smallest SNA, LIS, Smallest Vs. Pappert, 152 Federal Appendix, 252, decided in 2005. It's not the whole union. The whole union in Smallest is that the epistandard of refueling applies to a lower court decision. It's an adjudication on the merits. That's an opinion about this. There's certainly nothing in the language of the statute that would suggest a lower court determination was not entitled to deference. Correct. And that is Judge Hyrow's reasoning. This court has said in public decision that we look to the last state decision on the merits. But this court never actually reached the issue. The bipartisan state had in the case of rape versus violence. So I just wanted to make the clear where that one issue was. But we contend that Judge Hyrow is correct in her analysis. Thank you. Thank you, Ron. I would like to thank both counsels for exceptionally well done arguments and arguments. And I would ask counsel if after we discuss or adjourn, if they would coordinate with Ms. Lang on having a transcript prepared this war argument. Thank you. Who's closed? That the government's cost. Please rise. Thanks.

Okay, okay, all persons having this, this will be on the United States Court of Dill through the third circuit. Our month is drawn here and give their attention. This Court is now set on safety guidance. And I will be here. Thank you. Good morning. We have one matter, probably, and that is the case of Fahey versus Corn at all. And that is number 0-3-9-008-9-009. Is Murray? I'm just going to roll it down. Please, the Court of Dill and Maryland, for the Commonwealth. I would like to reserve 10 minutes for a bottle. That's fine. You can just put the mic up just to touch. Thank you very much. You're better here on? Yes. Okay. Nearly or rather over a quarter of a century ago. You can assume what person by your defax. Okay. So maybe where we want to start is, I don't know, either of my colleagues want to touch on the waiver issue. Sure do. Absolutely. That is my intention to address that first year on it. I was just going to, you know, the girl, the murder of the 12-year-old child, which occurred January 1981. I will proceed to the issue of the waiver. The first issue we present in our appeal is whether the district court aired and actually holding it in a chair hearing on the claim. Section 2254E2 of the Federal Haviest Statute. On the claim. That puts the ram in the hack, doesn't it? Well, that is the basis for the crime. Is it the crime? Well, that's the issue. And at least that's the issue which caused, I believe, the lower court to believe that E2 didn't apply at all. Because the lower court, do you, Kristen, is saying that it was not a claim? Yes. And Kristen was a different situation and it was a claim of cause and prejudice for miscarriage of justice to overcome a procedural default. I know quite well, Kristen, but I've tried to repress it. Yeah, and I actually was counseling Kristen. I just didn't. I hope. Did you hear that? That is a bit of a different scenario than one poem of Waker of Further Collateral with you. One kind of name. I'm in a state court proceeding. A federal right. In other words, it seems to be an anomaly to claim that in state court, you could rate wave a right which only arises under federal law. Well, Your Honor, I suppose that's an issue for the court. The court below Judge Slobitor, I'm sorry, just sort of, Judge Shapiro found that she was a state that could. She evaluated the waiver, but she also concluded that had she not evaluated the waiver, there was no basis for revoking the waiver and she did, she did hold my question as much. My question is more in a fundamental. Why even get to the merits of it? The question is, I'm the fundamentals of it. How can something in state court waiver right which only arises under federal law? Well, he did. I mean, he was colloquial on it. He said, not believing it. When you see it, you did that you're answering something which is, I can't accept, you've got to say, why in state court someone can wave a right which your eyes is only under federal law. It seems to me you're going to be right. It cannot be waved if you're in a federal proceeding or a federal type of situation. Well, colloquial included a specific waiver of the right to further review. That's what Judge Cowan is asking you. We know that that is what occur. The question is, can there be an effective waiver in a state proceeding, all of a federal right? That's what Judge Cowan is asking. I'll add to his question and ask, why can't there be, since in a guilty plea colloquial, a defendant waves all kinds of federal constitutional rights and federal rights? Well, I think that's true. I mean, the result of his waiver, he said, I want to be executed now. I don't win any further review. State or federal? He never mentioned having made his court a step. He was specifically colloquial on this point. He was colloquial and said he hadn't either discussed it with his lawyer, is there? No, he didn't. I'm no federal. He specifically said that he had not discussed that, had not been brought up with his lawyers or by his lawyers. On page 36 of her brief, he's asked, do you understand that you have right to go to a federal judge and ask him, or him or her to evaluate your claims? Yes, I'm aware of it. And then you understand you could appeal that decision to the federal court of appeals and ask him to review your claims. Yes. And then again, you can go to the United States Supreme Court. I am aware of it. And he continued to insist that he wanted to waive for the review. The author of the review? The question is, can a state court waiver bar federal habeas review? My answer to that is, yes, Grana. All right. Assuming that's your answer. And obviously, the answer of the question is, I understand that. I have a much more fundamental problem. But I obviously speak only for myself. But I'm an old state DA and an old state trial court judge. I've tried these cases as a lawyer and as a judge in the 70s and 80s. And I must tell you that the procedure followed by Jack Sabo in this waiver hearing was, in my view, bizarre. And I would like to hear how the commonwealth can justify both the structure that Jack Sabo used, pursuant to the remand order from the Supreme Court. And then the tone and tender of the hearing itself. With respect to the structure, I'm referring to the fact that he declared some kind of possessory interest in this proceeding based upon the remand. It's my proceeding. This is my witness he referred to, Faye. And then he proceeded to not so much at the outset quite to Mr. Faye himself. But to turn him over to the district attorney to question, this is Mr. Faye's waiver. Does it occur to you as being an extremely unusual, say the least, way to proceed pursuant to this remand? Well, Judge Smith, I think the PCRA courts approach to this was that the Pennsylvania Supreme Court had remanded the matter directly to Judge Sabo to determine whether Faye's offered a way further collaboratively. He sure that's what they did. What's going on here? That's what they did. And the Judge turned Faye over to the DA for questioning. In fact, there were objections, interposts by Faye's attorney to the fact that they were unable to question. Well, there was another issue going on at the hearing. There were a number of attorneys professing to represent Mr. Faye. His permanent counsel were Narskeleman and Louis Natali. And at this point during when the case was remanded for the colloquy is when President Counsel got involved on the case. And I believe some of what the court is referring to is the PCRA trial courts real concern as to who really was representing Mr. Faye. Well, certainly with all due respect, the affiliate of the district attorney's office was not. And the prosecutor dominated the initial questioning at least of Mr. Faye and proceeded to do so despite objections from Mr. Faye's counsel as to how they wanted that proceeding conducted. And it was conducted solely because Mr. Faye had indicated to the court that he wanted to wave these rights. It was his proceeding. And before you even got to that, in order to determine if somebody can battle the wave, don't you have to determine first that they're competent? Well, this court recently held in Taylor versus Horn that he don't necessarily, when a trial court finds that a waiver was knowing and voluntary. And plus it in that finding is a competency determination. Now here, but in Michael V. Horn, in a capital case, you got to determine that they're competent first. And Judge your partner, what's she not waiting saying that? In other words, if I say to you, I wave X, don't you first have to figure that Ambrose competent to wave at all? You do, but there are a number of things that I need to do. In that regard, you have to make a competency determination or specifically have a competency hearing. If there is some significant addition of incompetency, here there was none. Ms. Murray, isn't the answer to Judge Ambrose's question? A Supreme Court decision? Godinus versus Moran, a court is not required to make a competency determination in every case. As in any criminal case, a competency determination is necessary only when a court has reason to doubt the defendant's competence. That's correct, and Judge Sego had no reason to doubt that he's competent. But as a attorney, he's brought it up to high-nother double. They didn't have colloquy. They insisted that competency was not an issue. And I might add, Judge Sego was also the reason. When did they bring up the, that they wanted to ask questions relating to competency and Judge Sego cut them off at the turn every time? It wasn't for competency. They made a vague illusion to some to the conditions of a confinement being a hardship. They never, ever suggested that they would be competent. It was even, it was just the voluntaryness issue and not an issue of competency. Judge Sego still cut them off and prohibited the introduction of any evidence that might have been relevant to the issue of voluntaryness. Nothing was, when they repeatedly said that he was not threatened or forced in any way to waive his right to further collateral review. Council said nothing. But when Fadi, a reading from Judge Shapiro's decision, when Fadi acquired Judge Sego, quote, I mean, doesn't the order say you are determined by competency? Close quote. The Judge is bothered quote. You and I know you are not insane, right? Those attorneys might think you are saying but I double. That's sort of fun, the center isn't? Well, Your Honor, there's one thing I need to put down, Maverick Guard. The Judge Faye was the trial judge and he was also the PCR agent and Faye's third PCR in preceding. You mean Sego, you mean Sego? Judge Sego. And there was a two day of an engineering hearing, okay? And at that time, Council suggested that Faye might be incompetent, but no evidence was ever presented as to competency. So, and the remand was not for purposes of determining competency. No. The remand, the exact language of the remand, or it was not remand, the trial court for a collective to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and away from collateral proceeding. And there really was never an issue of competency in this case. Companency was maintained by Judge Shapiro at the Federal Auditorial Hearing, but she too concluded that Faye was not in competency. And at the same time that there's no question of competency. How do you get around the fact that it appears Judge Sable cut off Faye's lawyer from establishing facts or wanting to put into record facts which would indicate that this is not really a waiver. It appears that it's a coerced or a pressured waiver. The lawyer appears to be having been sidelined by Judge Sable. Council never suggested that Faye had been threatened in any way. He was prevented from bringing to the court's attention proofs. He was trying to make an offer of proofs that he was going to make. And Judge Sable expressed complete disinterest in that type of proceeding. And like further add that whatever that offer of proof was, the Judge Sable did not entertain, was profit of the Pennsylvania Supreme Court, which concluded that the waiver was competent, knowing and violent. No, no, wait, wait. That's after the Judge Sable was proceeding. The fact that the Supreme Court agreed that Judge Sable does not, for our purposes, make that a fact that we're going to live with. Our briefing appears to be indicative of the fact that Judge Sable kind of will say he's attorney from trying to establish facts which would indicate that whatever waiver he's so forth was coerced and not a voluntary waiver. And my response to that, Your Honor, is that that profit, whatever that was. And it certainly didn't include any psychiatric profit because no psychiatric profit was made in Faye 3. The supposed to be the same for us. No, but we're not telling that. No, but he did. He was cut off. We acknowledge that. Seems to be a yes or no. I don't want to put what you're mad. But this is something I appreciate. I agree that Judge Sable did not permit extensive questioning on the part of counsel. Well, that counsel was prohibited from establishing facts which he would indicate that Faye 3 was induced by the conduct of personnel, which prevented him from truly expressing his sentiments. But my response to that is, while counsel was not committed to question Faye about a vague allegation of the complications of his confinement, because that's what they asked a question about. And there was such a surprise. No, counsel never said my client was threatened before he came into court today. And allegedly, according to both Faye and Mr. Nolis, Faye told him he talked to his counsel before he went into the call of the week. And counsel knew. When Faye did mention to the court his concern about a prison guard who had the same surname as the victims of crime. That would be the first hearing on the second year. And the court? That was no relevancy. That was no input. Well, and the court said to him, well, he transferred him to another prison and Faye appeared to be following him. He said nothing more was said about it. It was very, I don't want to cut off the time on the waiver. But I'm interested in your position concerning the findings of Faye's stitch which were made by the district court on the habeas petition, if my colleagues have no objection. I'm concerned with the fact that your position concerning the findings that Judge Shapiro made. Okay. Well, before I go into that, I just want to point out that we do have, there's an issue with regard to the standard of review. I think this court's recent decision in terror makes it clear that the federal hate me to statute standard of review would apply to the state court's finding of the waiver was competent knowing involuntary. And that's the lower court determination and the Pennsylvania Supreme Court's determination. Why did the district court's findings, the only evidence of alleged threats by prison guards was Faye's own self-serving testimony. Judge Shapiro did not really even believe that. She stated she didn't believe he actually suffered the abuse that he alleged. She said she found that Faye, he quote, lived in a state of fear and agitation caused by the expectation of danger based on Faye's mental health expert. Faye, when the mental health expert testified at the hearing, a doctor Bernstein, and he was on the opinion that Faye suffered from post-traumatic stress disorder, which caused him to believe that his life and the lives of his family members were in danger if he waived his rights. Dr. Bernstein also opened that Faye was incompetent. He said he was competent that day, testified, he was competent during the trial. We know the testimony. We want to hear from you. What can you find with the findings that she made concerning the petition? The fault is that the court really applied a denobo's standard and the standard has to be whether the petitioner rebutted the state court's factual findings, both the trial level and the Supreme Court. They're both entitled to difference. Whether the petitioner rebutted those findings by clear and convincing evidence. I admit that the petitioner said that if she's making, if no findings were made in the first place by which she's banned. Findings were made by which she has been found. As to voluntary use? Yes. Please read them to us. I remember a general termination made by Jim St. Luke, so this specific part of the petitioner. The Pennsylvania Supreme Court had Supreme Court findings. How could findings are entitled to the same difference that lower court findings are entitled to? How can an appellate court make findings? Well, can this court repeatedly set that the Supreme Court set it in some of the verses? No, no, no. How can an appellate court make findings of fact? I know we can. But state court findings about the appellate court are in a different way. How does an appellate court make findings of fact? It has to be made at a trial court level or some lower court level. And then it's appealed to the appellate court. The appellate court applies a certain standard of review to that finding of fact. Judge Smith's question is where is the finding the fact at this trial court level before Judge St. St. Luke said about where the picker at level? The court ultimately concluded that the waiver was knowing intelligent and voluntary. Well, they reviewed the findings of fact made by Judge St. Luke. I was happy you're saying. Well, yeah. But they didn't make findings of fact. That's great court. And they endorsed his view of the record. But they only reviewed what he did. They did, but under the appellate court findings are entitled to the difference. We can't judge the case. The case for me, can we not, is Murray, that the statutory language itself is odd as it may be. It presumes that there are factual findings made in the course of state proceedings both at the trial court level and at the appellate court level. Yes. Now, as Judge Jim wrote of suggests, that is highly unusual as a practical matter. The findings of fact of virtue have always made at the trial court level and reviewed and accepted rejected. That's certainly quite a valid determination. But I absolutely, absolutely. But I will return to the procedural issue here because I'm deeply troubled by it. And also because, it necessarily, in my view, based on our own jurisprudence, impinges upon the word that is not the case. The review of the findings of fact and the nature of the standard of review apply. And I want to just read you this brief language from our elaborate opinion and asking to comment on it. What we said was, the procedures a state court applies when adjudicating a petitioner's claims may also be relevant during habeas review. The extent to which a state court afforded a defendant adequate procedural means to develop a factual record. Whether the defendant was afforded a full and fair hearing to put it in the parliance of the pre-ADPA statute, may well affect whether a state court's factual determination was reasonably in line with the evidence presented in the state court proceeding. Or whether the petitioner has adequately rebutted the presumption. Or we compelled by our own jurisprudence to consider the nature of the proceeding in the man in which it was conducted by Judge Savile, in determining the reason was of any fact farming he engaged in on the issue of voluntary intelligence. Yes, Your Honor, but the lower court concluded that simply by virtue of proceedings, the 254D didn't apply at all. It applies under the law. The question is to what extent all of that weighs into the equation in applying deference, but the 254D still applies. And Lambert holds that televerse is horned, the recent decision that it was issued last month, they all hold that. With the point being that if there is something wrong with the way things were done, the process by which the findings of fact were made, then you don't have a foundation, if you will, for claiming that there should be deference given to those findings. Isn't that correct? I think there is a foundation in this case. No, I said I absolutely don't want a legal question. If there is a problem with the process by which the findings were made, then we don't have to give deference to those findings, correct? Don't apply to this case as a matter of just theory. It would have to be a very, very significant problem. I think what Lambert says is it weighs in the equation, but it doesn't mean you don't give deference. It's not a way I read Judge Shulttoff's language. I think it's a question of the level of deference, if you will. You don't think that cutting off council and virtually prohibiting defense council from participating in a meaningful way in the presentation of evidence? Is fundamental to the matter in which this proceeding was or could have been conducted? Well, the trial did just frequently cut off council. I mean, that is not necessarily the positive. I mean, if you were known to do that ourselves at the impoverished level, but that's not my question. At the federal of it, Anjury, I need to have a power of power. I'll put a certain point doing foreign cross-examination. I think that is positive of the knowing and voluntary nature of the waiver. Ms. Miserie, I read both of the transcripts and parts of the re-readbook. And again, I call upon a lot of experience ancient as it is down in the trial plastics. And I must say that when I read a trial judge threatening contempt, threatening several times that the defense council moved from the courtroom in insulting council, at one point it was all of council that even included the assistant district attorney presence. Calling, playing up apparently to Mr. Fahey by suggesting he had more brains to use shared stables, than all of council members together. Can you defend? I don't ask you to defend. Do you think that that is anything other than an absolutely extraordinary proceeding? I'm just a country lawyer. Maybe this kind of thing goes on a lot more than I realize, but it sure is going on in my experience. The point I would make in that regard here, Your Honor, is that while that might seem extraordinary, the court was not in any way pressuring Henry Fahey to waive his rights. Anything he kept saying to Mr. Fahey, look, if you don't want to waver, that's fine. I'll send it right back to the Supreme Court. We'll go ahead with the appeal. That was his car. It was not coercive. Every time someone raised something, all right, well, we'll dispense with this and I'll send it back up. Which means there's no waiver. Right. But Fahey, which means there's no waiver. The assistant of that waiving his rights, despite counsel's efforts to convince the judge was hesitant to allow an eventual determination of no waiver here. He continued to press and not to send it back up despite several threats. Well, I think that was because Mr. Fahey kept insisting that he wanted to waive his rights. All of the abusive language that took place, the visa be counseled to police and Mr. Fahey's presence. Mr. Fahey was in witness to how, which lawyers were treated in that court. I think that as it may, the waiver is covered extensively in a breeze. You covered your opening brief, though. Oh, I didn't. The question is whether or not you waived it yourself. No waiver? Oh, I had pages on the validity of the waiver. Not the opening brief. It might opening brief your honor. Yes. No wait, I'll tell you. Let me just to change topics a little bit. How can anyone, meaningfully, prosecute a vaccine claim or put a vaccine claim forward when they don't have transcripts of the WOD there? We've seen a lot of these, you know, and uniformly they're based on wanting that occurred in the trial court. How could he, meaningfully, go forward with that claim when he was prohibited from getting even transcripts if there? Well, what's prohibited? His lawyers never worded the transcript. Not his trial attorney, and he was also as a paladin attorney, not his first piece of array attorneys. And now, I mean, 20 years later, there's no, allegedly no transcript. I don't know whatever it is currently called, but it's a transcript. The transcript is a transcript. Well, Collarot Council is ineffective. This is not a constitutional claim. But the bottom line is that this court addressed this issue in Caravan and also in the US versus Sierra. The point is, at this point, he needs to show a colorable need for the transcript, and he hasn't. Well, I can share what he needs because he doesn't have what went on in the jury's selection process. Well, this court has previously suggested that what he needs to do is confer with trial counsel, get at the David's from trial counsel, do something to make some constructive allegation as to error at the portion of the transcript that's no longer available years later. This is not a situation in which a fake was denied the transcript. Why is that a fake accomplice? He can't make a showing because he has nothing to make a showing with. Well, I suppose it could turn into a catch-22, but years later, with no effort, when it is the appallance burden to obtain the transcript, and when a series of lawyers, many of them post-conviction, who, if no effort to obtain the transcript, at some point, I mean, the Supreme Court has said you have to show a colorable need, and this court has also said that. And he hasn't done so. He has no bats in claim on it. I could get to that in Rebellul or whatever. He has no bats in claim, and he has no other specific claim of error relative to the jury's selection process. I'm the mayor of the thing with you from Mr. Nolis, and then we'll let you get a chance to deal with that on Rebellul. Unless my colleague has any questions on this now. There's one other issue in my appeal, but it's fairly straightforward, the mills are shared. I'm going to deal with that on Rebellul as well. Thank you, Your Honor. In fact, we get both sides of the chance to deal with that. Just before you get out Mr. Nolis, is Rebecca Lamb here? You just want to sit up here if you wouldn't mind. Please, the court. Good morning, Your Honor. Billy Nolis and Matthew Laury on behalf of Mr. Fahey. This case has penalty phase issues pending before the District Court that are legitimate, and has some guilt phase issues that I'm going to talk about this morning. The procedural default issue is something that we urge the panel to deal with, because it's amazing to me that after all these years, we're still debating that proceeding that I conducted with Judge Sabal 10 years ago. It's remarkable. I won't go over it in detail. Judge Shrippira says five times. There's an effort to question Mr. Fahey to make an oral proper, to make a written proper. It's actually seven times. I'm confident it's your coercion. On the voluntary, Mr. Lula's going on. I'll tell you right up front. We use it. In the past, when I was younger, we used the word competency kind of loosely. But the reality of it is we were saying there are psychological factors that are affecting one's business. There is also a fundamental distinction for legal purposes between competency, which goes to capacity and voluntaryness, which may have absolutely nothing to do. Sure, but volunteering has two components. One, volunteering is has the component of whether somebody has the capacity, and two, has the component of the juxtaposition. You have to reach voluntaryness of someone who lives any capacity. Yes, but within voluntaryness, there is the second component of the choice the person is making. Is that choice being made with open eyes? Is that choice influenced by a psychological factor? Is that choice something akin to what should Shapiro flound, the words, the impetus for what Mr. Sabal didn't state good? It seems you focused initially on what Judge Piro found. Let me ask you about the extent of deference that we owe the state court finance here. It's my recollection from Judge Shapiro's opinion that she ruled that because of competency determination was not held at the state court's determination of voluntaryness, it was not entirely of the presumption of correctness. Is that what she agreed that that's what she determined? That's part of what she will indicate. You agree that she determined that we can get into other parts, but we're going to get anywhere here. Sure, we have to try to find a certain commonality. If I heard me undoubtedly inquire your adversary about the Supreme Court case of the Venice versus Iran that indicates that the competency determination is not necessary in every case. If that is in fact the law, then was it Judge Shapiro in error in determining that the presumption of correctness was not happened? What Judge Shapiro did is that she actually found Mr. Fei, he competent ultimately. So the issue is a non-starter in this case. And competency as such is not the issue before the court. What is the issue before the court is that as to the voluntaryness of the waiver, as to the validity of the waiver, something that this court in Taylor's most recently said is a valid legal issue. And of course the Supreme Court itself, I said in the rest of times, is a valid legal issue. As to the validity of the waiver, whether it was done with open eyes, whether it was done by somebody who was capable of waiving or somebody who was waiving because of a factor affecting their waivers that the Court should hear about. As to that, Judge Shapiro found there was no failure to develop the evidence in the state courts because there was an attempt to proper it several times to Judge Shapiro, although he refused to hear it, no failure to develop in the Pennsylvania Supreme Court because it was all provided to the Pennsylvania Supreme Court in affidated form, affidated from myself, from Mr. Pooja Maul, and other women. And the state courts wouldn't hear it. Even with all that, Judge Shapiro said she would give deference to Judge Sabo's waiver ruling and then conduct a hearing to see if we could rebut that by clearing convincing evidence. That's perfectly permissible on the 2254 E, under E2 there was no failure to develop under E1. She put the burden on us to rebut the state court finding by clear and convincing evidence. And so the commonwealth's position that somehow Judge Shapiro did not give deference, she gave deference. She said the unfairness of the hearing is significant under 2254 E2, that's the reasonableness of the state court fact funding, and is significant under 2254 E1 whether we rebut it by clearing convincing evidence. She then did what this Court in Christensen's District Court could do and what they could do clearly under the claim language of the statute, which is conductive hearing on a procedural default. Would you agree then that the Lambert language that I recited for Ms. Murray is relevant here to the fact finding by Judge Sabo? Sure, absolutely relevant, but it's relevant in to the not but and it is relevant in two ways. It's relevant under 2254 E2 to the relevancy to the reasonableness of what Judge Sabo did and what the Pennsylvania Supreme Court did and then affirming Judge Sabo and remember how the Pennsylvania Supreme Court did that. Ms. Murray says all they reviewed everything and they affirmed it. They did that by putting blinders on. We won't read Mr. Dulles' FAFIT David. We won't read Mr. Mujamal's FAFIT David. We won't read the FAFIT David from the interns who say we were there, we saw what happened and this man was not in tact. They refused to look at any of that evidence when they affirmed they only looked at the four corners of what happened in that hearing. It's so much surprising that even looking at the four corners of what happened in that hearing they affirmed but nevertheless they refused to look at the very evidence that was presented to try to show that that hearing did not properly assess the issue that they had remanded in the first place. And just as a footnote, the August 21st after David from Mr. Fady, that's the after David within 15 days of the hearing where he says I was cursed, I was threatened, I was afraid for myself, I was afraid for my family, what I did was not voluntary, I want to litigate, and I was given to Judge Sabo. That was still given to him before the case went to the Pennsylvania Supreme Court and even then it was put to the side. In any event what Judge Shepard did is she looked at all of that and she interestingly said even with all of that, even with I think I guess speaking for Judge Shepard I could stop right now and say this whole thing was not reasonable, was not fundamentally fair by any stretch of the imagination, but I will still give it difference, which is what she did. And then she said petitioner, can you rebut by clearing convincing evidence, the State Court funding, but there was a voluntary proper way and she conducted it hearing. And she made findings of fact and remember this interplay in the briefs where the Commonwealth is kind of saying clear convincing is this thing that your honors are reassessed on your own. The reality of it is whether something is clear and convincing is it clear to the trial of fact to Judge Shepard. Is it convincing to the trial of fact to Judge Shepard. She conducted a hearing and she very carefully laid out her findings of fact, Dr. O'Brien, the Commonwealth Society. So after all of this I take it going back into my original question, did you agree that Judge Shepard correctly applied the 2250 presumption? With respect to these findings? They're by requiring you to rebut them like me. These are, yeah. Our position was you shouldn't even apply the presumption because the hearing's... Well that's what I was getting at when I was asking you about her determination with respect to competency, which I agree with you is not an issue in this case. What was ruled... how did Judge Shepard rule with respect to voluntary? With respect to the company. Well with respect to voluntary, Judge Shepard's ruling was that we rebutted any state court fine under by clear and convincing evidence and that in any event that part of her finding and part of what Lambert says is appropriate when you look at 2254E1, the clear and convincing section of the statute. It's whether the state court proceedings were fair, whether it was a hearing, whether the facts were actually developed and burnt by the state court. And in that regard, she found that that proceeding was not fundamentally fair. And even with deference, those fact findings are rebutted by clear and convincing evidence. The evidence showing that, and it's a very simple concept, what motivated Mr. Faking, what he's believed that he would be harmed and that members of his family would be harmed. And remember, within a year earlier, that this proceeding story had been triggered. And the things that Mr. Faking said about what happened to him, and I won't go into all the facts because you're not on his record. You're not just going to have read the record, but this is a case where there is a prior report from the county prison when Mr. Faking was arrested relating that he has been beaten by guards and that he had a post-traumatic symptom of the tombs. And so what your department found is that Mr. Faking's testimony about what he believed, what his perceptions were, and why he was waving. And if that was not voluntary, not made with open eyes, not made intelligently and none, all of the key words that you have in any voluntary case, they don't apply here. His motivation was not knowing intelligent, voluntary waiver. Judge Shapiro found Dr. O'Brien, the county wants her fundamental health practitioner, not credible. She found Dr. Bernstein, our mental health practitioner, credible, and she did exactly what Trier facts do. She looked at all the evidence and she said applying the clear and convincing standard, giving the county what the benefit of the doubt in the words, even so the presumption of correctness has been the public. And so the reality of it is, if what you had before the court was simply the waiver issued as to procedural default, clearly that is an issue that should be ruled by Mr. Faking's favor. I will end the conversation here. Judge M. Rueber, before we go on to ask that you address whether a state court waiver can affect a federal case review. Judge Henry took the words right out of my mouth. No, it cannot. There's only one case that arguably is in the ballpark and that's the 11th Circuit case that the county won't cite at the outlet case. That's a case for the 11th Circuit, assume for the sake of argument that such a thing is possible and went to merch. And then went out to the merits and concluded that he had to wait and also concluded that he had to wait. That's not a binding precedent by any stretch on this court. There is no other case along those lines. And properly so, federal hippie's corpus is a federal right. Federal hippie's corpus is something that you would not normally waive in another form. The guilty police situation, Judge Smith. Why not? Why wouldn't you? A defendant will use all kinds of federal constitution rights and of course a guilty pick-up. Yes, but so why not? There is no case that says that they all understand there's no case but I'm trying to find the logic behind this position because I'm drawing upon that analogy. I'm trying to find then what differences there are here, especially given the fact that it will always be an Article III court that determines whether or not the habeas right was waived in the first place. On the other hand, from a policy standpoint, it would seem to me that any declaration that there can be no waiver of federal collaborative review can only have the effect of dissuading prosecutors from entering into play agreements. You make a lot of sense conceptually. You absolutely do but that's not. And what do you know and then that occurs? I know it well. And as you're saying goes, even the blind hog can find an equal in everything. He's just quoting his wife. Judge Smith, the point however is even we take all that that makes a lot of sense. It doesn't apply. But we never, we're never going to have to reach this issue of whether or not the federal rights have been waived if we find that the whole process would be in front of them. The one they reasonable find the reason number one and then one footnote to that if you were to have a waiver of federal rights, some judge somewhere would have to say there is a waiver of federal rights. Judge Savel never said that. The Pennsylvania's a pay board member said that in two separate appeals and certainly Judge Shapiro found the opposite of that. So not only do you conceptually it could be whatever it is, but you don't have any court ever ratifying such a waiver. Well, it is the same court. In this case, say that he waived is also his habeas rights. There's no Supreme Court opinion that says that's contrary to that. That says that we have to, you know, that that the state court was wrong. There's no Supreme Court opinion that it's not the same. So therefore don't we have to respect those state courts finding in that regard that they look that it's factually any way to his habeas rights. I would say Judge Cowan although maybe we're a little far feel given the court of what's before the court, but that no you wouldn't apply that type of that analysis because the question of whether they're a Supreme Court case that controls is, is not a question that goes to procedural issues. That's something that goes to whether a claim for relief, a substantive claim, is something that can be ruled out of the defendant's favor. This is a procedural issue which is traditionally determined independently by the federal courts and the statute itself is the court. There's Judge Javari laid out in in Kristen. Very clearly it's talking about claims, not about this procedural stuff. This procedural stuff is still done the traditional way district judges did it even before the yet, but let me throw out just a couple more concepts in the ballpark of procedural default. And as Murray did not argue, but it might even simplify things even further. Ultimately what the Pennsylvania Supreme Court did in this case is to apply the time mark. Ultimately it applied a procedural default rule that this court has already found, branching in the Taylor several cases, to be not inadequate bar. It is because, and that's significant here for several reasons. One is in hallway this court held that you look at the bar and that the state court actually applied. Since ultimately the bar, the Pennsylvania Supreme Court applied, it is not an inadequate bar. The whole waiver argument could be almost academic. It's not, I don't think, because we want on it. I think you're on a shit of firm. But given that there's an unnotated bar that's the bar that the court's ultimately put on this case, there's no adequate bar to begin with. You're winning only gets you to the merits. Yes, and that's what I want to go to. I'll just start with the confession claim. Yes, yes, right. I will say that on the merits before Beard first is banks, the penalty phase merit would be a lot easier in this case. But as to the statements claim, I'm glad you brought that up, Joe Jambo. That's the claim that I wanted to devote the core of my presentation to. This case has valid mental health related ineffective assistance of counsel issues as to the penalty phase that are still pending in the district court. My suggestion is, and then Shapiro is going to have to look at that. My suggestion is that when Judge Shapiro does that, the true honors permit her to also look at the ineffective assistance of counsel as it related to the confession with more care. Why can't we make that determination with that agreement? But I think ultimately this claim is going to need an evidentiary here and let me tell you why I say so. I think you already make that determination. In Shapiro, it actually ruled that the heir ultimately, that the heir was harmless. And in a moment I'll show you another one. That is what can't we make that determination? Yeah, why can't we have that? Absolutely. If you think the heir is harmless, you know, the ball ends up with, but as I'm going to tell you in two minutes, this heir is not harmless. It's not harmless. In this specific come tours of this case. But let me jump to that actually. And then I'll come back to what I wanted to talk about the validity of the confession itself. This heir is not harmless because, well, for starters, when you look at his rubinos closing argument at the trough phase, she argues for 31 pages. 15 of those relate to this confession. When you look at my friend, his mother's brief to this court, there are five pages in the statement of facts. From page 15 to page 20, page 15, 16, 17, and 18, all relate to this confession. Jens Shapiro ruled that the heir ultimately would be deemed harmless because Mr. Fakie confessed, quote unquote, to his girlfriend. And because there were circumstantial evidence that showed that he was present at the scene of the uranway afterwards, and I won't go into all the details. Surely there were circumstantial evidence. What Shapiro missed, however, and the reason that the harmlessness should not be applied to this issue is that the question isn't, did he do it? It's a question of degrees. It's a question of his Mr. Fakie guilty in a trial without the confession of first degree murder, or could this jury that was already inclined, just from looking at him, to think that he had some kind of problem, because they found extreme disturbance at the penalty phase, could this jury have said, no, it's second degree. And second degree, as your audience know, means a life sentence, and pencil it. It's a pretty serious conviction. Could this jury under the instructions have said, no, there's no evidence of specific intent here, sufficient for first degree murder conviction, and so we will use the rape to supplant the intent element and convict him on the second degree. That's the real harmless element analysis here. The confession to his girlfriend is three words. I did it. Mr. Fakie said to her on the telephone from the police station. The indistinguish, the sacred somehow undermined the weight of the confession. I don't get your point. The point is that even if just Shapiro is right, but it's a harmless error, Mr. Fakie did, as he told his girlfriend. That doesn't mean that necessarily the jury would find that he did it with some specific intent, sufficient for a first degree murder conviction, or the jury had the option of saying, yes, he did it. It's a rape. It's a felony murder. Second, how? Is not a pencil made by the jury permitted to infer the other evidence? The mouse? Yes. Yes. Those facts are graphically in the record in various ways. Graphically in the record to a jury that already thinks that this man from seeing, they thought he had a problem. They said that at the penalty phase. They said that when they found an extreme disturbance. It was one of the many kinds of circumstances. The real harmless error issue, so to speak, the one that Shapiro did not address in her opinion, it's a very thorough opinion, but she just missed this. Is it harmless as to the degree of guilt? Is it harmless if you exclude the confession, can it be said that the confidence befitting a disposition of a capital case? This during would have convicted a specific intent, first degree murder, no matter what. And that was finally... Don't you have to show that the state court concluded that the confession was lawfully obtained? Yes. So then, don't you have to show that that was an unreasonable application clearly established for the law? Yes. Yes, so let me go back to... I was jumping ahead to the harmlessness issue because that was the old question which Colin posed about, doesn't matter at all. But it's first got to be a proper. It's first got to be unlawfully obtained before you get a brief. Yes, and when you were just discussing. And then going back to unlawfully obtained, I ask you to remember of the Supreme Court's holdings in Moran versus Burbot and Fair versus Michael C. And then there's B. There's the concept that the case is called knowing intelligent waiver and that has to do as the Supreme Court said in Fair versus Michael C. And then there's the definition of the lawfully obtained in Moran. It has to do with the educational background of the defendant, the defendant's understanding and the defendant's mental state. Those are the two components. What happened here is you have an ineffectiveness claim because that's the core of our challenge, the confession, where the counsel put on Mr. Fahy at the suppression hearing to say that he was tricked into signing the papers. But there's absolutely nothing, nothing, nothing to develop and present evidence as to what's wise to be as to the knowing and intelligent nature of what the defendant was. Why counsel didn't introduce that evidence? At the hearing that Judge Sable conducted on the ineffective assistance of counsel at the penalty phase, Mr. Green, the lawyer said, and I've got to tell you what the evidence is in the moment because it's significant. But he said he never looked at the prior mental health reports and they include competency evaluations in these very cases that were pending before the court. Never looked at them, never read them, never thought about them, never used them, should have used them, made a mistake and not used them. That's Mr. Green's testimony. From that testimony, Judge Sable found, from that testimony, Judge Sable found Mr. Green had those records. And if you were to give reference to Judge Sable's findings, it makes Mr. Fahy's claim even better. Because that would mean that Mr. Green had records that within five days of when he was arrested, he was arrested on January 29th. On February 3rd, there's a report from Dr. Wainwright at the prison that talked about Mr. Fahy being in terror, hallucinating, having a post-traumatic reaction and being not in control of himself. That's within five days of the arrest. Counsel had that report from Dr. Wainwright and you have that report in the supplemental appendix. If you look at volume six of the supplemental appendix that we've provided to your honor, all of these reports that I'm going to refer to were laid out in here. Counsel, if you take Judge Sable's ruling at face value and I invite the court to do that, would mean the counsel had a report from Dr. Stanton and another report from Dr. Camille. One of them conducting a competency evaluation in this case that had been ordered by the court. So Judge Sable was not without any evidence on this case. What? Any professional. This is not a suppression hearing. This is at the PCRA hearing on ineffective assistance of counsel. At the suppression hearing, he was without any evidence. At the suppression hearing, counsel never developed and presented any of this stuff that I'm telling you right or something. To face a content that he would have given completely different testimony as to the confession. It was different on the slide. Have done, had you been representing him? Have you ever contend that he would have given completely different testimony? I did not do it. The answer to what we've pledged that a reasonable counsel would have developed the evidence in form, Mr. Fahie, and presented it. Now, there hasn't been a hearing, so in fact, finding to answer your honor's question, we don't have. But point is, we've pledged, we submitted to the court that had it being represented by reasonable counsel. The whole counter of the trial would have been different. You wouldn't have put Mr. Fahie on, even at the suppression hearing, if you had real mental health evidence to provide it. Well, the question is, what, assuming there's ineffectiveness, the second prong of Strickland, the prejudice, how, the question is, if he had presented this, how would that, anything, be presented? Well, I failed to do so, in this case, you claim. Where is the prejudice when the evidence was there that he confessed for purposes of the judge viewing him, there was no reason to put in a claim of incompetence, insanity, or whatever, in the first place. So, where is the, assuming that there's ineffectiveness, where is the second prong, if he had this evidence, and he didn't use it? Yes, yes. Isn't the second prong that you would have to convince us that Judge Sable would have concluded that it's a crime? That's a statement. We would have to convince Judge Sable. On the Strickland, there are reasonable fact-finder. There's a reasonable possibility. There's a reasonable, objective fact-finder sitting in Pennsylvania at this time, that there's a reasonable likelihood that they could have served him. Just tell the evidence, you know. Yes. Okay? Yeah, but the only one that you have, whether or not getting back to the first prong, whether it was ineffective for counsel in the first place to claim on the penalty phase, that he didn't do it. Well, the penalty phase is not before the court, but that wasn't exactly the counsel that did it. The penalty phase? He was not the best way to claim it. He was not the best way to claim it. He was not the best way to claim it. The Judge's expression. If all of the evidence was put in, it wasn't put in by counsel with respect to psychiatric reports, how would that have shown that he was coerced in beginning that confession? Except that right. The answer to that, the simplest way to answer that. I mean, I can recite to her on a bunch of cases about whether somebody's acting reasonably with open eyes, understanding. But it's just relevant. I'm assuming it's our element. Look at what the Pennsylvania Supreme Court said on direct appeal. They said, and really from the direct appeal in 3-11, the test is whether there was sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it. This is during the context of a confession. The duty of the suppression court is to determine whether the Commonwealth has established by the ponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing an intelligent. The question for your honors is, can you confidently conclude? That's what Strickland talks about. Can you confidently conclude that it would have not been suppression if the court that's applying that standard? Obviously, Judge your viral confidently concluded. The point is, if all of that evidence came in, how was he still coerced? Let's assume that was in the state. How was he coerced? In the best of that comparison. That's right. That's why I was trying to explain it to the outside. It doesn't show coerced in the whole idea of, under Miranda, is that police interrogation is inherently coercive. And so you do two things. Under A, you look at the point in whether there was coerced. Strick, they gave him his right hand to write. And per A sign. For purposes of my presentation to your honors, forget about coercion for a moment. But you look at on waiver, on waiver of Miranda rights, whether that waiver was knowing intelligent and done with open eyes. And when you do that, you look at evidence that within days of his arrest and then prior to the trial, they were findings in this record that he hallucinated, that he had thought broadcasting, that he had memory difficulties, dementia, organic brain damage, severe depression, intellectual impairment, auditory. Linda, at ten minutes, are we getting this way? Thank you, Linda. Auditorial hallucinations, seizures, inside impairments, judgment impairments, that he had depressive and emotionally unstable elements. All of that is in the reports that either counsel never got, because they're the reports in this case, if you take his testimony at face value, or if you take Judge Sebel's finding that he had, and he never presented it in the suppression here. But even as a psychiatrist, for example, who said that he had, you know, his only personality disorder. Didn't he also find that he did not have a major mental illness that would affect his ability to wave? All of the doctors said Mr. Vain, he did not have a major mental illness and a pretty trial site. Yes. And even a major mental illness would not, as a matter of law, stand in the way of a determination of our turn. We know that. That's a pretty good one. Not necessarily. And just, I guess, let me take a step back and say the thing I should have said at the outset, if you would agree with us as to harmless error, then the issue before the court really is, is what we've given you, sufficient as a proffer for Judge Shapiro to hold a hearing on whether counsel was ineffective for failing to use this evidence at the suppression hearing. That's the real issue before the court. Because the ineffective assistance of counsel for failing to develop the evidence at the suppression hearing has never been addressed by the state courts in any way whatsoever. The Pennsylvania Supreme Court never addressed it on direct appeal. They just relied on the evidence that counsel, we have submitted, ineffectively developed. Post conviction, the Pennsylvania Supreme Court never dealt with the actual ineffectiveness issue because they used the way. And let me tell you from a moment what Judge Savo said. Judge Savo, who a lot of hearing only an ineffective assistance of counsel at the penalty phase, he did not hold the hearing on this issue. But even so, he then went on to it. And it's interesting, just as a footnote, when you read Judge Savo's order and he lists him, beginning the issues that counsel raised, the ineffective assistance you're failing to present the confession isn't one of them. But he then goes on and dresses it at the end anyway. And this is what he says. What he says is, trial counsel did present evidence that the defendant had mental problems. But the thrust of counsel's motion was that the police tricked the defendant into signing a blank form on which the police wrote the confession. Defendants, suppose, mental problems, had little, if anything, to do with this alleged bruise. And so look at the circularity of Judge Savo's findings and hold that against the statute. What he's saying is the lawyer argued that Mr. Fahey was tricked into making his confession. Did he sign the blank form? You want us to call it the evidence? Well, there's a suppression here. The evidence of the mental health problem. Defending was that you did not sign blank forms. Is that correct? Yes. Yes. The evidence of Mr. Fahey's, Judge Savo, that rules. The evidence of Mr. Fahey's mental problems would not have shown that he was tricked into signing the blank form. That circular ruling by Judge Savo doesn't address this claim, especially so because he didn't hold the hearing on it in the first place. So all we're saying is when you look at Mr. Fahey's history, when you look at what that evidence is, we submit, we give in your honors enough, that when this case gets remanded to Judge Shapiro for disposition of the penalty-fesishes, which is something the party's agreed needs to happen, we urge that you also say, look at this confession issue and hold the hearing on it. What if you were in your remaining time address, the trial transcripts in conjunction with that sort of... Yes, I'm sorry. ...that we were in the prosecutor's office. What we asked for, the main thing we've asked for all along was that it was a proceeding to reconstruct the record. And those are done off and in Jones versus Love, Judge Dalzel did that just recently. It's something that's done, reconstruction of the records. Judge Shapiro, sorry, but rarely from scratch and rarely without some specific showing, where is there anywhere in the papers a suggestion of some specific error that occurred? That's question one. Question two is, is there anything in the record from trial and appellate counsel about specific errors that occurred during the June of the jury selection stage, and if not why not, because I understand it to be have been consulted about other matters? It's a trial and appellate counsel where both Mr. Green and what is in the record is what I told Judge Shapiro is that we made efforts to get the transcript and to talk to prior counsel about it and those efforts were unsuccessful. He isn't necessarily correct that our caravan decision makes it pre-tubbering. Caravan says show me. Show us why you need this transcript. That has to be more than, because I might be able to find something. I wish it wasn't, but it is more. So what are you offering? Sure. And what we're offering you is a batson claim. And a batson claim that has something to it. It has something to it because you're a lot. But a batson claim that is pre-powers for your heart. That's the legal issue before the court. And if we, if we, let me... The first though I guess maybe the first question is, do you really have a batson claim? Yes. If we have a batson claim, then your honor should allow reconstruction, because then we shall need, obviously, need to reconstruct. I'm a part of some statistics in this record about racial composition that might suggest a batson claim to us. We have not let anything from the blood there be, again, it's the circularity of it, because we don't have that. There's nothing such as to get a hold of that we can say. There is some probability or even possibility that this specific event occurred, did not occur during the year. Am I correct? We've urged you to take an inference from historical facts, but the answer to you directly isn't up there. We don't have anything specific. And if we raise this in this case, then it would have to be in any case, which, the petitioner comes forward with a claim, but no affirmative showing. With the claim that has what we think is support. And the support is the historical information and the information about general practice in Philadelphia County that we play in the details. But general practice, pursuant to the Pennsylvania rules, in fact, did not require the board here to be transcribed at that time. Isn't that correct? So, nothing untworn happened here in that regard, right? Correct. If a duty was upon Mr. Grimm to order the transcribed claim, if it's, of course, he saw some issue that might have made availability of the transcribed to him of some value for a ballot purpose. Yes. Yes, I mean, you know, we have several ineffectiveness issues as to Mr. Grimm, one of which is. But Mr. Grimm, what's going to be important is that if we agree with you on this, then we'd have to agree on it, because about any case, where a claim was made. I don't, I'll tell you why I don't think so, because I think in this case we have made a showing, we presented to you evidence generally about Philadelphia in the batsen area. That's general evidence in any Philadelphia case. That would open it up to any claim. If Judge Gowin, if you don't think that that's what we got, if you don't think that's good enough, we don't have more to do. I'm asking you why is it good enough? I'm not making it into an issue, because a reasonable person looking at that evidence about the historical practice in Philadelphia County, in the fact that this court in four cases and several additional district court cases, and several cases from the Pennsylvania courts of common pleas and the Pennsylvania Supreme Court have all said, there was a batsen area in these trials. This was a practice at the time. That's enough to say to a reasonable person, well maybe we should allow a reconstruction here in this case. I'm in it in a half, let me talk about powers, because you brought it up, Judge Ambrou, and it's simplest. At the core, simplest level, batsen said there's two things to consider. One is the fairness to the defendant, and secondly is the equal protection rights of the jurors. Powers said there are two things to consider, fairness to the defendant, and the equal protection rights of the jurors. Those homelands, when you put them side by side, are not the same. The powers extended batsen to defendants challenging the exclusion of jurors of another race. That's what you have here, but powers has not been made retroactive. By any court of the defense, has it? Correct. I could find a single one. There are at least four that have refused. I can't find a single one. You've got to convince us that it gives us a new rule, don't you? We have to convince you that powers was dictated by batsen. And for the reasons we laid out in the brief, powers was dictated by batsen. They applied the same criteria, fairness to the jurors. The powers was a third party standing case. Yes, sir. Does that place miles away from batsen? No, because in looking at third party standing under the Tegan analysis, you're not only locked into looking at batsen and the powers itself. You also look at what was the third party standing law before powers? And clearly third party standing law. But even there, there are four circuits, the seventh, the ninth, the tenth, and the eleventh, that hold that batsen does not apply to different race situations. Yes, they do. And those circuits, is there any circuit court that has gone your way? There is the citations and the argument presented in our brief, but we don't have a circuit court case that we can rely on. I will say as to those circuit court cases, just one final comment. And the final comment is that all of those cases ignored the fact, did not give sufficient heat to the fact that in batsen itself, the courts said, that look at the rights of the jurors and the defendant in a criminal case can bring the batsen claim to protect the rights of the jurors, which is what power is really based on. And once you look at it that way, there's an argument to be made under T and the movement in the race. Unless your honors have further questions, I thank you very much, Your Honor. Thank you. Thank you very much. Is Murray? And I probably will hold you for about 10 minutes for the rebuttal. I'd like you to answer very quickly for my good. The argument of counsel, your friend, crossing high. Why, the ineffective assistance aspect of the mental health and state of the petitioner? Why should that be remanded to Judge Shapiro? My position, Your Honor, is that it should not be. Assuming those ineffective assistance, why is there also prejudice in counsel not bringing that forward? As a Judge Shapiro correctly noted in finding that there was no room in his air, even if the confession was admitted at trial, and of course the court found that Judge Shapiro found nothing wrong with the confession, no basis for its suppression. The evidence in this case, even aside from the confession, is overwhelming. They not only confess to his girlfriend, he confessed to his mother. He led the police to the knife, which he used to stab the 12-year-old minor victim 18 times in the chest. He led the police to that, he threw it in a cell and he led them to it. The noble host of the law is his position. He recognized all my evidence. His position is a jury having, correctly being brought to their attention, the mental state and the history of the affay. He may have reasonably concluded, look, it's not first degree murder, it's second degree murder. So it's ineffective for counsel not to abort that up in the suppression or work needs to the jury in so nation. Here are even aside from the confession, the medical examiner's testimonial one would have been enough. Henry Faye stabbed this 12-year-old little girl 18 times in the chest. We know how, but when I establish a specific attempt, it's very important. Mr. Smith, excuse me, I'm a part of the body. Allow Judge's ask questions. All I was just about to say was that specific attempt was precise in the question I asked in your adversary and I saw him nodding your head when I made the point. So we know that, we can establish that much. Well, thank you, and that's my point that the confession was not the only, far from the only evidence demonstrating Faye's specific attempt to kill. He also strangled the child with various ligatures, including an electrical cord and a t-shirt. Could that be consistent with his mental state, though? Well, that's a different defense altogether, which has never been presented. Faye even took the police to the location of the murder weapon. Which I think is reflective of his mental capabilities. I mean, it's not only reflective of his mental capabilities, it is at least a piece of evidence corroborative of his role in the offense, separate in a part from any confession was placed on a paper or a made-order, isn't it? Correct, here, and I'm going further to point out that the medical evidence that was proffered even now, for that matter, the Federal and the Engineering, but also at the PCR that the Engineering was a two-day hearing and Faye actually presented a medical expert, a Dr. Temper. And Dr. Temper was not of the opinion that Henry Faye was in any way incompetent. The two three sentence doctors who evaluated in the prior to sentencing, after he was convicted, doctors came out and sat and they but found Henry Faye to be competent. In fact, their diagnosis was a severe personality disorder, but no major melanolus encountered in competent. In fact, Henry Faye's present expert, Dr. Bernstein, has never even, by at the David, profered anything suggesting that Faye was incompetent at the time he waived his Miranda rights and admitted this, the same as crime, which he also admitted to his mother and his girlfriend. In light of that, the ineffective claim was quite properly rejected by Judge Shapira. There's no basis for remand. Now, you wanted to address the sentencing and outside for the question of regard to the waiver issue. What's deal with the sentencing? You said you wanted to address that when you said down the first time. Oh, yes, just the other aspect of our appeal. I will rely on my grief with regard to the bats and powers claiming that the court has any questions. And I believe I discussed the transcript issue before. I would like to mention the other basis of our appeal. And that is the court's grant of Mills relief, of course, prior to the United States Supreme Court's decision in beer feedbacks. Of course, as the court wrote, I was in beer feedbacks, the Supreme Court held the law. I thought you and Mr. Wallace agreed that that would be your other rules. The decision here. And in light of that, I would say this same relief, that was the same remedy that was employed in Albrecht. Albrecht. Albrecht should apply. The court would either reverse or could do what it did in Albrecht and remand for denial of the Mills claim and then review of the remaining penalty phase claims. There were a number of them which, Judge Shapiro did not reach because she granted relief on the Mills claim. The only other thing I might mention is the standard of review if it's in any help to the court. Well, before you do that, I would just go back to the way of the issue. The court, the Picker Court, said that Fahey weighed his picker up rights. But there was any finding that he had waved his federal habeas rights? Yes, Your Honor, to this extent. Well, the State Supreme Court said, was that he waved his right to further collateral review. Now, further collateral review encompasses both State and Federal. It was not a finding that he waved his right to PCRA or another one, just with your PCRA petition. Or he waved his right to appeal. I mean, for a long time, Fahey has been claiming that he only waved his right to appeal. That is flatly rejected by the findings of the State Court. The State Court found he waved his right to further collateral review. Now, the State Court referred back to was the State and Buy, Judge Savo, we said, all right, Mr. Fahey, I will inform the Supreme Court of Pennsylvania that you were knowingly waving all your picker up pellet rights and all your picker rights. Now, by a pellet rights, that doesn't mean habeas, right? A pellet meant, I believe you referred to a pellet rights because at the time they elected to play further review, excuse me, he was on appeal in the Pennsylvania Supreme Court from the denial of the State. The appeal stayed up there. The only thing the Supreme Court demanded was for the narrow purpose of conducting a colloquial ongoing. Correct, Your Honor. And what he waved was that appeal to the Supreme Court on the merits of all of the issues that were presented to the PCRE, a court in the third PCRE and the court conducted a two-day interview hearing. But my point is, where is there a specific waiver of federal habeas? You don't have to look to the colloquial point. And specifically, I think I read it before, he specifically says he's waving all for review because what he says is, I want to waved everything, I want to be executed immediately. So in plus and in that, it's not going to be a case of review. He was asked to be all this right hearing if he was waving attended the Wavies and Pills of Federal Courts, but picker accounts have been objective. I know that there was no federal court proceeding. There was Mr. Nolan, two inter-posed state. Then the court stated, he could chumped in and says, quote, you are not here to examine or cross-examine or anything. It's between Mr. Fei and myself who was sent down from me to decide. So I mean, Mr. Oli, he didn't get a chance. Well, the basis for my contention that Mr. Fei waved his right to federal review is grounded in the colloquial itself. He himself, of his own mouth, specifically said, I waved all that. But I wouldn't be executed immediately. It isn't Judge Ambo correct. That is the only reference anywhere in the colloquies or records of the two hearings, August to August 9. And it is as specific as it gets with respect to Hades. And that is the question that you telling me you wish to withdraw your appeal to the Pennsylvania Supreme Court and to the federal courts. That's it, isn't it? That you get any more specific than that about federal Hades. Anywhere in the record before you get sickly. Just the colloquial that's it. I mean, I don't think there's any. And I think the state court referred to collateral review. But it didn't say PCRA review. It's a collateral review. And I think implicit in the term collateral review is both state and federal. Or what have said, PCRA review? Well, it is for us lawyers, probably. I mean, it's certainly not specific. I had the state's Supreme Court, so PCRA review. I think that you never spoke to a lawyer about it. Well, he clanky had it. And his lawyer wasn't even allowed to interpose much of the rejection. In any event, I should point to you. I think my time is up. So there was a week that the state review was thoroughly addressed in my brief. There's one point I would like to make that's possible with regard to standard of refueling. I'll give you one minute. Okay. In preparing for argument today, and I let Mr. Nollis know about this, I discovered an unpublished, I realize it's not presidential, an unpublished decision of this court on the question of whether a lower court determination, adjudication, is entitled to deference under the edhpuff. Judge Hyrow and I submit rule correctly that a lower court finding isn't adjudication on the merits. And there's no need that those issues being presented to an appellate court in order for the deference. It's about that. In Smallest Vs. Pappert, that's Smallest SNA, LIS, Smallest Vs. Pappert, 152 Federal Appendix, 252, decided in 2005. It's not the whole union. The whole union in Smallest is that the epistandard of refueling applies to a lower court decision. It's an adjudication on the merits. That's an opinion about this. There's certainly nothing in the language of the statute that would suggest a lower court determination was not entitled to deference. Correct. And that is Judge Hyrow's reasoning. This court has said in public decision that we look to the last state decision on the merits. But this court never actually reached the issue. The bipartisan state had in the case of rape versus violence. So I just wanted to make the clear where that one issue was. But we contend that Judge Hyrow is correct in her analysis. Thank you. Thank you, Ron. I would like to thank both counsels for exceptionally well done arguments and arguments. And I would ask counsel if after we discuss or adjourn, if they would coordinate with Ms. Lang on having a transcript prepared this war argument. Thank you. Who's closed? That the government's cost. Please rise. Thanks

Legal Case Summary

Fahy v. Horn

Date Argued: Wed Jun 10 2009

Case Number:

Docket Number: 2598869

Judges:Not available

Duration: 85 minutes

Court Name:

Case Summary

Fahy v. Horn

Oral Audio Transcript(Beta version)