Legal Case Summary

I'm going to ask this court to reverse the district court's decision that the court of appeals holding that Mr. States correctly, validly waived his right to counsel, was constitutionally conducted by the trial court. District Court in holding to the contrary and finding that the court of appeals of Virginia made an unreasonable decision was based first on evidence that Mr. States chose not to present to the court of appeals of Virginia. The district court relies heavily, almost exclusively on conclusions it draws from a transcript from February 12th, 2007. Which was not part of the record presented to the court of appeals of Virginia by Mr. States

. Mr. States was the appellate at that point, was at that point represented by counsel. The counsel he had discharged was re-appointed to with the conclusion of the trial and represented in the through trial. They made a strategic decision of what to include in the record to present to the court of appeals of Virginia. The only evidence they presented about the waiver issue was the certificate executed in April 2007. Relines on that certificate and the statements in the certificate signed by the trial judge and by Mr

. States. They made a reasonable conclusion that he had been advised exactly as a certificate said that the advice given as a waiver. Yes. That the advice was conducted on that date exactly as the judge stated by signature and Mr. States agreed by his signature that he was advised of the nature of the charges that possible punishments of the benefits of counsel of the choice and consequences of waiving counsel. The other specifics that are set forth in that certificate

. Mr. States agreed even so advised and that the judge found based on the advice given at that day that he had made a knowing voluntary waiver of his right to counsel. This goes through, went up to the Virginia Supreme Court. The history of the state courts did, how many state courts looked at it? The last reason depending was the court appeals of Virginia. There was a request for a view by the Supreme Court of Virginia which was declined. The appeal was refused and there was no read

. It was only an order refusing for the review in the Supreme Court of Virginia. When it came for a habeas review it was found that it had been decided under rect appeal. There was a state habeas filed but state habeas review did not reach the claim it found under state rule under Henry that the issue sought to be raised had already been decided under rect appeal and was barred in re litigation in state habeas. So the court of appeals ruled on the merits. So court appeals were ruled on merit yes, Your Honor. And that was the decision that was before the district court pursuant to his 20 to 54 petition and that was the decision that the the magic

. The law was the district court considering circuit law in this holding. You read the opinion and they're supposed to be the you know the statute is perfectly clear that it has to be an unreasonable application of Supreme Court law and you know right says it and Marshall says it and our own opinion in Belvy Jarvis says it you know so this is time and time again this is supposed to be an exercise whether it's a violation of the law is found by the Supreme Court and then I look at the district court opinion and it makes all these references to circuit law as a basis for what's happening. I don't have an answer to what the district court was thinking Your Honor we of course made that objection to the magic courts magic judges record and recommendations and repeated our objection in rule 59 motion to the district court to reconsider that it was improper to rely on on circuit court precedent. The Apple E tries to argue that sometimes circuit court precedent is helpful if it's an habeas matter but none of those cases. For precedent is illuminating and everything but that you know that's just getting all this stuff into the back door and through the back door and and trying to do an in-run around the view that it needs to be predicated on Supreme Court decision. And Your Honor it also gets backwards what the Supreme Court has said in Renico and Resaance and in Yarborough that where you have a general rule and the district court correctly noted that Faradah is a general rule the resumliness analysis required in the state court decision gives the state court greater latitude in doing something reasonable with a general rule than if there were a narrow specific rule

. It's not that they need circuit court precedent to refine a general rule in the Supreme Court the general rule from the Supreme Court gives the state court latitude to make a reasonable application and that's exactly what they did here. It's never been argued or found that the warnings and advice that Mr. Space was given as reflective and certificate was an insufficient warning pursuant to Faradah and and Supreme Court cases that follow Faradah. The only criticism the district court made was that it's improper alliance on the February 12th transcript plus a sufficient colloquial under Faradah. I reread the decision again this morning to try and assure myself I can't find anywhere in the district court decision that addresses the sufficiency of the certificate warnings under Faradah. I don't see where the appellate, the appellate excuse me, has ever argued that the certificate if it actually reflects what Judge Shockley did on April 23rd was an insufficient colloquial pursuant to Faradah

. So it would require that we disbelieve that the judge did what she said she did on April 23rd that he was not in fact advised as she certified to find that there was an invalid waiver pursuing Faradah. Yes, Mr. Space first signed the certificate which is written first person that I have been advised of these things and the judge then signed below that confirming. Your point is the judge would not have signed the certificate personally saying I have been advised I have been advised unless the defendant had been advised. Yes, Your Honor. We can't assume she's lying

. There's nothing to support such an assumption in the record and in fact the Supreme Court President is we're supposed to presume that they courts conduct their business normally and regularly. So it says she did it. I think the analysis probably should stop at that point. The presumption of regularity means that at least this it would be unusual for a judicial for a judge to say to a sign something which says I have been advised by a judge of this court that I have the following rights I've been advised by a judge of this court the nature of the charges if that weren't true. Exactly, Your Honor. I think the Curative Peales of Virginia was certainly reasonable

. I think they were also correct but for purposes of this video I think they were certainly reasonable to rely on the trial judge or certificate that Mr. Spades had been advised as certified before being allowed to wave counsel. Wave is right to counsel. Excuse me. The.

.. No, it's interesting because Feretta doesn't provide any particular catacosal. No, none of the substantive cases provide any particular rule either which I think perhaps was the temptation for the District Court to look to the direct appeal cases and the bench book that it follows in trials that it conducts itself but as the court pointed out as we've argued in the brief that's not clearly established federal laws decided by the United States Supreme Court and where it has a general rule as set forth in Feretta it has latitude to make a reasonable determination. May my notes. Can you tell me how I came about that the Magistrate Judge ordered this transcript? I cannot, Your Honor. I came to the case after that point I've reviewed the record of the orders and the pleadings to that point. It appeared to be a so-a-spontay request by the Magistrate Judge that the transcript be prepared and filed. I spoke briefly to prior counsel if she had no indication that she could recall why the transcript had been prepared at that point. We didn't know if there was some procedural issue that he wanted to make sure had been exhausted or that was speculation of course. We didn't know why he ordered it prepared. Once he got the report on recommendation we had an inkling why he might have prepared it prepared. Still not clear why he ordered the February transcript prepared instead of the April 23rd transcript prepared if he wanted to flesh out the record of the waiver but in any case because Mr

. It appeared to be a so-a-spontay request by the Magistrate Judge that the transcript be prepared and filed. I spoke briefly to prior counsel if she had no indication that she could recall why the transcript had been prepared at that point. We didn't know if there was some procedural issue that he wanted to make sure had been exhausted or that was speculation of course. We didn't know why he ordered it prepared. Once he got the report on recommendation we had an inkling why he might have prepared it prepared. Still not clear why he ordered the February transcript prepared instead of the April 23rd transcript prepared if he wanted to flesh out the record of the waiver but in any case because Mr. State's own choice it was not before the Court of Appeals Virginia they decided to claim on exactly the record Mr. State's one of the Court of Appeals Virginia to have and decided that we would argue reasonably. If there are no additional questions Your Honor is out reserved for now is my time for any rebuttal. Thank you. Your Honor, please the Court I'm glad to be sure the clock's working because I suspect I'll need most of it. I want to start out with with a very important point is a very important case and it's very important case it's not in the briefs as you're honest it used to see me represent the appellant I'm the appellee in this case and we'll start by saying that I understood the way the opening brief was the real issue was about could the district court consider this and not really about whose obligation it was but the case I want to say is Watkins versus Commonwealth it's 4

. State's own choice it was not before the Court of Appeals Virginia they decided to claim on exactly the record Mr. State's one of the Court of Appeals Virginia to have and decided that we would argue reasonably. If there are no additional questions Your Honor is out reserved for now is my time for any rebuttal. Thank you. Your Honor, please the Court I'm glad to be sure the clock's working because I suspect I'll need most of it. I want to start out with with a very important point is a very important case and it's very important case it's not in the briefs as you're honest it used to see me represent the appellant I'm the appellee in this case and we'll start by saying that I understood the way the opening brief was the real issue was about could the district court consider this and not really about whose obligation it was but the case I want to say is Watkins versus Commonwealth it's 4.94 South you second 8.59 it's Virginia Court of Appeals case from 1998 holding that case is critical here because what the Virginia Court of Appeals says is that in Virginia on appeal when the issue the voluntaryness of the defendant's waiver of counsel is at issue the burden is on the Commonwealth to make the relevant transcripts the part of the record the burden is not on the defendant to do that that's page 8.63 is the court points out there that's because the right to cancel is so fundamental you can't shift the burden to the defendant that burden remains on the Commonwealth and it is in fact the Commonwealth's obligation to reduce the transcript so does that make kind of leads into the question I ask him how that this transcript came to be reduced to the match of judge you know on whose motion that was done if it was only attorney's motion or whether or not it was sought by the match of judge on his own I don't you know you're on a case certainly if Mr. Delhan came late to the case I came even later as I was appointed after the appeal had been perfected I think though to certain extent that misses the issue because the question is and if you look at pinholster pinholster as the court itself says the question in which I'm not asking the question because I think it has any particular legal significance I'm just curious oh no what this got into the record and what purpose it was well my answer would be your own I think it was a diligent magistrate judge who said this is important evidence it's in evidence that it was the Commonwealth's burden to produce I'm going to and my my moving to pinholster was actually to answer the question which pinholster says so if the question we're reviewing is whether this is a quotation from 1398 whether 225041 permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court it did not purport to dress what constitutes the state court record what is in it or what is not in it I think what's most interesting is the Supreme Court in pinholster it's at footnote 12 says well now we're going to turn to our own independent review of the state court record and it notes in footnote 12 the parties agree on what that is so there was no issue in pinholster at all I don't understand why the combination of the February 12 hearing plus the written waiver isn't enough to establish the fact that there was a waiver of the right to counsel and that he wanted to proceed process well certainly if you look at the what we call the Freddie and Chris the clearly established Supreme Court rule that would require more and was on evidence with the written waiver and the from the written waiver in the February 12 hearing we're gonna I'm gonna have to answer that in two parts if you look at what the February 12 hearing said and the relevant parts are joint appendix 139 and 140 it's very brief it just since you're sure about this mr. spates the event yes ma'am you're going to be held the same standards if you were an attorney you understand that yes you're going to be required to know when to make an objection the basis that's fine but you know it's it's it's still something it's it's on point and it's it's it's followed up by you know you can't divide and conquer you have to take these two things in tandem well certainly I think it's critical to take him in tandem because and you actually have to go forward to May 7 and take all three of them but you can use tandem when there's three but in conjunction because you have the actual transcript of the Ferreta inquiry at 139 and 140 I think what's important is if you go on then to page 146 the court rules on the motion on February 12th it says let me make sure I get to let any page 146 okay Ms. Johnson you're relieved to your duties mr

.94 South you second 8.59 it's Virginia Court of Appeals case from 1998 holding that case is critical here because what the Virginia Court of Appeals says is that in Virginia on appeal when the issue the voluntaryness of the defendant's waiver of counsel is at issue the burden is on the Commonwealth to make the relevant transcripts the part of the record the burden is not on the defendant to do that that's page 8.63 is the court points out there that's because the right to cancel is so fundamental you can't shift the burden to the defendant that burden remains on the Commonwealth and it is in fact the Commonwealth's obligation to reduce the transcript so does that make kind of leads into the question I ask him how that this transcript came to be reduced to the match of judge you know on whose motion that was done if it was only attorney's motion or whether or not it was sought by the match of judge on his own I don't you know you're on a case certainly if Mr. Delhan came late to the case I came even later as I was appointed after the appeal had been perfected I think though to certain extent that misses the issue because the question is and if you look at pinholster pinholster as the court itself says the question in which I'm not asking the question because I think it has any particular legal significance I'm just curious oh no what this got into the record and what purpose it was well my answer would be your own I think it was a diligent magistrate judge who said this is important evidence it's in evidence that it was the Commonwealth's burden to produce I'm going to and my my moving to pinholster was actually to answer the question which pinholster says so if the question we're reviewing is whether this is a quotation from 1398 whether 225041 permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court it did not purport to dress what constitutes the state court record what is in it or what is not in it I think what's most interesting is the Supreme Court in pinholster it's at footnote 12 says well now we're going to turn to our own independent review of the state court record and it notes in footnote 12 the parties agree on what that is so there was no issue in pinholster at all I don't understand why the combination of the February 12 hearing plus the written waiver isn't enough to establish the fact that there was a waiver of the right to counsel and that he wanted to proceed process well certainly if you look at the what we call the Freddie and Chris the clearly established Supreme Court rule that would require more and was on evidence with the written waiver and the from the written waiver in the February 12 hearing we're gonna I'm gonna have to answer that in two parts if you look at what the February 12 hearing said and the relevant parts are joint appendix 139 and 140 it's very brief it just since you're sure about this mr. spates the event yes ma'am you're going to be held the same standards if you were an attorney you understand that yes you're going to be required to know when to make an objection the basis that's fine but you know it's it's it's still something it's it's on point and it's it's it's followed up by you know you can't divide and conquer you have to take these two things in tandem well certainly I think it's critical to take him in tandem because and you actually have to go forward to May 7 and take all three of them but you can use tandem when there's three but in conjunction because you have the actual transcript of the Ferreta inquiry at 139 and 140 I think what's important is if you go on then to page 146 the court rules on the motion on February 12th it says let me make sure I get to let any page 146 okay Ms. Johnson you're relieved to your duties mr. spates you're on your own you may represent yourself it is you're right and then on February 14th two days later it's in the joint appendix at page I will be happy to confirm to the court but is the order that judge shockley entered which says on February 12th I granted the motion defendants representing himself that there was nothing to carry forward to April 23rd there was no no indication me further inquiry so I think that gives you the context on April 23rd if if mr. spates had declined to sign this certificate then he would have been a pointy council I would disagree that you're on it because judge shockley made it clear in February 12th that she wasn't gonna you know tolerate this sort of back and forth no you're trying to suggest that the April 23rd certificate was was pointless not much renters to just was pointless I'm trying to suggest that there's a last because I've been advised by judge on the nature of the charges the potential punishment that I have the following rights to be I have a right to be represented by a lawyer now suppose he had said well no I've been advised to that at all I haven't been advised to the nature of the charges I don't know I didn't know that all of these things I'm undisturbed I don't know what I've been proceeding without a lawyer I may be confronted with complicated legal issues what are you talking about if he had objected in any way and said I've been advised of all these stuff I'm proceeding in the dark you know you don't think the judge the judge would have appointed counsel and say look and you know I'm not going forward with this unless you're fully aware of this and and sign this written waiver well I would wonder that all those things are exactly what mr. spate said on May 7th which is why I think you have to read all those things in conjunction because just Patrick raised the question said I'm sure judge shockley went over all that with you his answer no the court she didn't all right mr. spate no sir I didn't this is this is what happens in these cases is that these people are there sophisticated and they jerk judges around and the judge is darned if you deprive them of their pro-say rights and you're darned if you deprive them of counsel and it's just typical somebody shows up on the day of trial and pulls the rug out and has a completely contradictory position from what's from what's done and it seems to me that almost you know is trying to so error in into the SOW trying to so error into the record by by blowing hot and cold we got it and then you know you show up at the last minute all the witnesses are ready and everything and you ask for contenduals and that's just playing in game games with the court is just jerking the court around I couldn't agree more you know except that didn't happen here first of judge shockley said you're not gonna get a continuance I'll let you go back to your cell and get your notes but we're going to trial and then again you have to put it if if the purposes were the witnesses were called and the witnesses were ready that's correct and that's where the court said I'm not going to give you a continuance it was in the discretion of the court after all that's preceded if there's one call that a state court judge can make a state court trial judge there's one call they can make is whether to grant a continuance or whether not to grant a continuance and and you know would have frosted me if somebody had shown up on the day of trial and just said well look everything I said before is irrelevant I want to continue it's the very last minute well you honor again I don't think the record supports that what that was what was done here on February 12 which is when it was originally set for trial judge shockley said I'm not going to give you a continuance I'm not gonna let you yank the court's chain you have to make a decision the Supreme Court has said there's an inquiry you need to go through and the Supreme Court is also made clear that like when we talk about a clearly established rule from the Supreme Court it doesn't mean that there has to be a catechism or set of steps you have to go through the Smith and the Schaefer cases which we cited indicate that certainly the the courts understand and the Supreme Court is indicated we have a clear rule you know how can this be an unreached given Ferretta's generality how can this be an un you know and given that written waiver and given that February 12th Colony how can this be an unreasonable application of clearly established law well I was just sure it's pretty simple the Patterson versus Illinois which follows up on Freda as good when have these for it is situations dealing with a spectrum at one end the sort of that the Ferretta light is photographic lineups at as the graces at the most extreme and is the criminal trial itself where we are supposed to have the most probing inquiry possible the court says the other extreme recognizing the enormous importance in rural and triplets of current but we have imposed the most rigorous restrictions on the information that must be conveyed to defendant and the procedures that must be observed what the court that Supreme Court is looked to is if they've been advised to the charges have the court inquired into their educational background their ability to comprehend their practice with the court he had a lawyer he shows up on February 12th and says I want to discharge this I want to discharge which is his constitution right that's right but that's not an involuntary act and then the the court says do you know what you're doing correct and the Supreme Court has said I'll be it generally but sufficiently clear that the Federal Court of Appeals and the Supreme Court has understood when it is violated when the defendant asserts that right which right he has you have to go through a probing and rigorous inquiry to determine whether he is knowingly involuntary exercise and so right and one of the things the court has to consider is and that inquiry is memorialized in the April 23rd certificate where you're on a judge sign the inquiry is excuse me the judge side the thing the judge signs the the certificate saying what she advised and I've been further advised and you you're requiring us almost to say that the judge is lying you're asking the court to do is to I'm asking the court to consider the record as a whole which is there's a transcript of exactly what Judge Shockley said on February 12th and it gives you compare what was said to what the courts have lacking in Smith and Schaefer that establishes the inadequacy of the Freda Inc. on February 12th you then have a form which is signed by that I don't know. Two months after the court had already ruled on the request discharge counsel and told Mr

. spates you're on your own you may represent yourself it is you're right and then on February 14th two days later it's in the joint appendix at page I will be happy to confirm to the court but is the order that judge shockley entered which says on February 12th I granted the motion defendants representing himself that there was nothing to carry forward to April 23rd there was no no indication me further inquiry so I think that gives you the context on April 23rd if if mr. spates had declined to sign this certificate then he would have been a pointy council I would disagree that you're on it because judge shockley made it clear in February 12th that she wasn't gonna you know tolerate this sort of back and forth no you're trying to suggest that the April 23rd certificate was was pointless not much renters to just was pointless I'm trying to suggest that there's a last because I've been advised by judge on the nature of the charges the potential punishment that I have the following rights to be I have a right to be represented by a lawyer now suppose he had said well no I've been advised to that at all I haven't been advised to the nature of the charges I don't know I didn't know that all of these things I'm undisturbed I don't know what I've been proceeding without a lawyer I may be confronted with complicated legal issues what are you talking about if he had objected in any way and said I've been advised of all these stuff I'm proceeding in the dark you know you don't think the judge the judge would have appointed counsel and say look and you know I'm not going forward with this unless you're fully aware of this and and sign this written waiver well I would wonder that all those things are exactly what mr. spate said on May 7th which is why I think you have to read all those things in conjunction because just Patrick raised the question said I'm sure judge shockley went over all that with you his answer no the court she didn't all right mr. spate no sir I didn't this is this is what happens in these cases is that these people are there sophisticated and they jerk judges around and the judge is darned if you deprive them of their pro-say rights and you're darned if you deprive them of counsel and it's just typical somebody shows up on the day of trial and pulls the rug out and has a completely contradictory position from what's from what's done and it seems to me that almost you know is trying to so error in into the SOW trying to so error into the record by by blowing hot and cold we got it and then you know you show up at the last minute all the witnesses are ready and everything and you ask for contenduals and that's just playing in game games with the court is just jerking the court around I couldn't agree more you know except that didn't happen here first of judge shockley said you're not gonna get a continuance I'll let you go back to your cell and get your notes but we're going to trial and then again you have to put it if if the purposes were the witnesses were called and the witnesses were ready that's correct and that's where the court said I'm not going to give you a continuance it was in the discretion of the court after all that's preceded if there's one call that a state court judge can make a state court trial judge there's one call they can make is whether to grant a continuance or whether not to grant a continuance and and you know would have frosted me if somebody had shown up on the day of trial and just said well look everything I said before is irrelevant I want to continue it's the very last minute well you honor again I don't think the record supports that what that was what was done here on February 12 which is when it was originally set for trial judge shockley said I'm not going to give you a continuance I'm not gonna let you yank the court's chain you have to make a decision the Supreme Court has said there's an inquiry you need to go through and the Supreme Court is also made clear that like when we talk about a clearly established rule from the Supreme Court it doesn't mean that there has to be a catechism or set of steps you have to go through the Smith and the Schaefer cases which we cited indicate that certainly the the courts understand and the Supreme Court is indicated we have a clear rule you know how can this be an unreached given Ferretta's generality how can this be an un you know and given that written waiver and given that February 12th Colony how can this be an unreasonable application of clearly established law well I was just sure it's pretty simple the Patterson versus Illinois which follows up on Freda as good when have these for it is situations dealing with a spectrum at one end the sort of that the Ferretta light is photographic lineups at as the graces at the most extreme and is the criminal trial itself where we are supposed to have the most probing inquiry possible the court says the other extreme recognizing the enormous importance in rural and triplets of current but we have imposed the most rigorous restrictions on the information that must be conveyed to defendant and the procedures that must be observed what the court that Supreme Court is looked to is if they've been advised to the charges have the court inquired into their educational background their ability to comprehend their practice with the court he had a lawyer he shows up on February 12th and says I want to discharge this I want to discharge which is his constitution right that's right but that's not an involuntary act and then the the court says do you know what you're doing correct and the Supreme Court has said I'll be it generally but sufficiently clear that the Federal Court of Appeals and the Supreme Court has understood when it is violated when the defendant asserts that right which right he has you have to go through a probing and rigorous inquiry to determine whether he is knowingly involuntary exercise and so right and one of the things the court has to consider is and that inquiry is memorialized in the April 23rd certificate where you're on a judge sign the inquiry is excuse me the judge side the thing the judge signs the the certificate saying what she advised and I've been further advised and you you're requiring us almost to say that the judge is lying you're asking the court to do is to I'm asking the court to consider the record as a whole which is there's a transcript of exactly what Judge Shockley said on February 12th and it gives you compare what was said to what the courts have lacking in Smith and Schaefer that establishes the inadequacy of the Freda Inc. on February 12th you then have a form which is signed by that I don't know. Two months after the court had already ruled on the request discharge counsel and told Mr. Spate he was on his own. No, Your Honor, I think what it is though is contextually that indicates the court has already conducted the Freda inquiry. It says, okay, I've decided this and it pointedly tells us that I'm not going to take up on February on April 23rd anything that I've already decided this is that that's that speculation because the list of what has been advised in that April 23rd written waiver is actually more extensive than the federal than the February 12th waiver and you're trying to say there was no colloquy on April 27th or April 23rd or whatever it was and I think you know that's pure supposition. I'm not trying to say there was none you're I mean I think to turn the kind of Wells argument on itself. Why had you explained the fact that the April that the April written waiver is much more extensive than the February colloquy. How do you fit the February colloquy into the how do you think that that just incorporates the February colloquy by reference and does nothing else

. Spate he was on his own. No, Your Honor, I think what it is though is contextually that indicates the court has already conducted the Freda inquiry. It says, okay, I've decided this and it pointedly tells us that I'm not going to take up on February on April 23rd anything that I've already decided this is that that's that speculation because the list of what has been advised in that April 23rd written waiver is actually more extensive than the federal than the February 12th waiver and you're trying to say there was no colloquy on April 27th or April 23rd or whatever it was and I think you know that's pure supposition. I'm not trying to say there was none you're I mean I think to turn the kind of Wells argument on itself. Why had you explained the fact that the April that the April written waiver is much more extensive than the February colloquy. How do you fit the February colloquy into the how do you think that that just incorporates the February colloquy by reference and does nothing else. In fact, is there a reference to the February colloquy and saying at any point in time, well, you know, the February colloquy took care of this or are you revised in February or whatever? No, it doesn't it doesn't refer back. And I think that's part of the primary that that form is a pre-printed statutorily required form. It doesn't vary in every single case in Virginia where the defendant waves counsel. That's the form that people sign. I'm not I'm not calling anybody a liar. It's that you know one of the things is that let's put it this way you're saying that the state court judge misrepresented the facts and I you know that that she signed something that she knew had not been done

. In fact, is there a reference to the February colloquy and saying at any point in time, well, you know, the February colloquy took care of this or are you revised in February or whatever? No, it doesn't it doesn't refer back. And I think that's part of the primary that that form is a pre-printed statutorily required form. It doesn't vary in every single case in Virginia where the defendant waves counsel. That's the form that people sign. I'm not I'm not calling anybody a liar. It's that you know one of the things is that let's put it this way you're saying that the state court judge misrepresented the facts and I you know that that she signed something that she knew had not been done. And you know what how do we do that? Well, you're on a I will tell you a practitioner before state courts a lot. There's a lot of forms that come before judges that judge a sign. I'm not saying anybody's lying or doing anything. I think one of the questions obviously this point is was that we don't we read what comes before we read all sorts of things to come over. I think if the court's recollections what I sign I read. I think the rec what the court I would miss I was saying the question is was the state Virginia Court of Appeals determination reasonable was it reasonable when it acted without a full record was it reasonable when active that a full record that was the obligation of the Commonwealth to produce had all of that information been before the Virginia Court of Appeals the February 12th transcript has to violate clearly established law as established by the Supreme Court

. And you know what how do we do that? Well, you're on a I will tell you a practitioner before state courts a lot. There's a lot of forms that come before judges that judge a sign. I'm not saying anybody's lying or doing anything. I think one of the questions obviously this point is was that we don't we read what comes before we read all sorts of things to come over. I think if the court's recollections what I sign I read. I think the rec what the court I would miss I was saying the question is was the state Virginia Court of Appeals determination reasonable was it reasonable when it acted without a full record was it reasonable when active that a full record that was the obligation of the Commonwealth to produce had all of that information been before the Virginia Court of Appeals the February 12th transcript has to violate clearly established law as established by the Supreme Court. That's correct and right and and we have the the district judge and the district judge here citing what I think are direct appeals and not not collateral review orders and citing all kinds of circuit law. Now you know I look for your response on that and you say well the circuit law is illuminated well in that case it's always going to be illuminating and we simply undercut the statute which sought to cab in this and restrict it to the law is non-seated by the Supreme Court. You know I think that's mischaracterized in my argument because I can put it again what the case is say is we look to Supreme Court precedent to determine what the rule is whether that rule has been violated then is a case by case determination as the Supreme Court itself said you know we don't decide everything we establish these rules the question then becomes whether they have been violated. So we don't I don't think the district court disputes that only Supreme Court precedent establishes rules that's for at a we cited numerous cases in our brief that said for at a and they have held that for at is clearly established federal law and when you're colloquious inadequate it is a violation that clearly establish federal law to you of I'm Smith and Schaefer are the ones we focus on the most we we we cited several others so I'm not arguing I don't think the district court looked to circuit court precedent to establish the rule it looks only to Ferretta then it I think as we said this court has done in determining whether those clear rules have been violated this court consults its own precedent it looks at well no because the whole point of that language in the statute was that when you have a rule as general as Ferrello that a basic respect for the states the generality of the rule gives the state courts a certain latitude and flexibility in its in its application that I don't disagree with it all you're not clear that the state court has more latitude there but it is not the there's door that shut to say well when it's not a clear rule it can never be violated I mean when there's you know that not the catechism I think there's a word the court you know how to establish a catechism around of the Arizona establishes a catechism Ferretta does nothing of a sort. No the court explicitly declined to do that but that doesn't make it not a clear rule. Well and the maybe the reason that decline is because of the fact that judges get jerked back and forth every day

. That's correct and right and and we have the the district judge and the district judge here citing what I think are direct appeals and not not collateral review orders and citing all kinds of circuit law. Now you know I look for your response on that and you say well the circuit law is illuminated well in that case it's always going to be illuminating and we simply undercut the statute which sought to cab in this and restrict it to the law is non-seated by the Supreme Court. You know I think that's mischaracterized in my argument because I can put it again what the case is say is we look to Supreme Court precedent to determine what the rule is whether that rule has been violated then is a case by case determination as the Supreme Court itself said you know we don't decide everything we establish these rules the question then becomes whether they have been violated. So we don't I don't think the district court disputes that only Supreme Court precedent establishes rules that's for at a we cited numerous cases in our brief that said for at a and they have held that for at is clearly established federal law and when you're colloquious inadequate it is a violation that clearly establish federal law to you of I'm Smith and Schaefer are the ones we focus on the most we we we cited several others so I'm not arguing I don't think the district court looked to circuit court precedent to establish the rule it looks only to Ferretta then it I think as we said this court has done in determining whether those clear rules have been violated this court consults its own precedent it looks at well no because the whole point of that language in the statute was that when you have a rule as general as Ferrello that a basic respect for the states the generality of the rule gives the state courts a certain latitude and flexibility in its in its application that I don't disagree with it all you're not clear that the state court has more latitude there but it is not the there's door that shut to say well when it's not a clear rule it can never be violated I mean when there's you know that not the catechism I think there's a word the court you know how to establish a catechism around of the Arizona establishes a catechism Ferretta does nothing of a sort. No the court explicitly declined to do that but that doesn't make it not a clear rule. Well and the maybe the reason that decline is because of the fact that judges get jerked back and forth every day. Now the reason that declined your honor was it said because it was an intensely fact specific decision that was going to vary from case to case so you have a clear and again I don't mean to dwell on Schaeferens but other than there are Schaefer is 10 years old it's been unremarkable for at least a decade that Ferretta establishes a clear rule and that the federal courts of appeals can determine when that rule has been violated that inadequate increase violate that rule and that the February if you look at what was found to be inadequate in Schaefer and then compare it to what happened on February 12th that that's sort of the beginning and ending of argument theory honors is the February 12th inquiry was inadequate you have a statutory required preprinted form that again I'm not saying anybody had any bad intent I think it was simply yeah I've already done the Fred inquiry let's all sign the form and then particularly if you look at it's the seventh circus decision in Smith you have a lot of the same sort of things there that when the trial date rolls around it becomes quite clear that the defendant didn't understand what was going and that's the essence of the Fred inquiry is the defendant voluntarily and knowing that he doesn't understand what is going on so you have a situation here honors where to the extent the record is inadequate it was a record under Wadkins it was the obligation of the Commonwealth to make adequate the federal district court got the record it should have had that the Virginia Court of Appeals had and we submit your honor that when you look at the entire record and compare it to the clear rule that Ferretta establishes and that the other courts of yields have found to be violated in situations where the inquiry was more adequate that the district court's decision this case should be for him. Thank you Mr. Walters. Mr. Deligan anything under fire? Please go first I need to register objection to my counsel citing cases that don't appear anywhere in his briefs other pleadings were not provided prior to the hearing disporting or otherwise disclosed me so I did not bring a copy of Wadkins and I can't comment specifically on its holdings I do know a couple things nevertheless it's a question of state law about whether there was part of the court of appeals record that doesn't inform what the district court did. The cases we did cite in our reply brief about the burden on the appellant to provide a record post date the date he reports Wadkins was decided I am familiar with a court of appeals case I don't know if it's Wadkins or not in which the court of appeals on motion supplemented the record by a Ritisurshwar the trial court to get a transcript back in front of it when when was requested and it thought it appropriate to it but I think the the bottom line if you will for our purposes today is that the the transit to the February transcript was not in fact part of the record considered by the court whose decisions being reviewed for reason on us and and further as I noted before the February 12th transcript is not the the pertinent one if you wanted to supplement the record what happened and has been noted the more detailed advice of the defendant's rights and consequences for a waving council heard in April this is supported in fact specifically in the record in the May 7th discussions prior to trial page 4 3 the joint appendix miss joss one comments that she has been fired and reconfirmed that she was fired that that has to refer to two separate proceedings in February where she had to motion withdraw because they didn't wish to have her services anymore and some later date where it was reconfirmed I don't want to get too far in the weeds in the stakeholder record but council has gone a little ways that way looking at what the court had ordered after February 12th I note that at J

.A. 22 and 23 the orders that entered granted the motion to withdraw I don't see anywhere in the orders were as said and the defendant has waved right to council it's simply granted the motion was before in February that formalities made them miss joss and mr. spades request that she be allowed to withdraw as his council so the April hearing was you know appropriate time to take a big question of whether he was waving proceeding with council and commented that was two months later what it was also was the next scheduled hearing in these proceedings was the next opportunity to have addressed that when everyone was back in front of the court and present council has all so many reference to Patterson and what he describes as a continuum or spectrum I think is the word Patterson uses for questioning and quotes the passage about a rigorous restriction for waiver a trial but Patterson itself again it does not set forth any in Judge Wilkinson's terms catechism after saying it requires rigorous examination information it simply says c foreta that's at page 298 of the Patterson decision 47 us 285 it's still a general rule even after Patterson and subsequent cases that the Virginia Court of Appeals was required to comply with they did comply with it they complied as we've suggested with what foreta had even by the February 12th hearing certainly by the time the examination that certificate on April 23rd was completed they've complied with any reasonable interpretation of what foreta requires the Court of Appeals decision finding that the trial court had validly received mr. spades waiver was was correct it was certainly reasonable and the district court's decision that it was unreasonable is erroneous both because it relies on the transcript not before the Court of Appeals because it relies on circuit precedent which does not establish clearly established federal law for purposes of 2054 and because the trial court and the Court of Appeals in fact had a record that showed he had been fully informed and made a proper waiver under foreta you know the questions I'd ask the court to overrule the district court's decision and deny relief all right thank you mr. delegate mr. of obfaces we appreciate very much your undertaking yet another representation of a client who's been for say and we appreciate your help in this I welcome that in Greek counsel and then take a short recess of about 10 minutes we're not going to do it we're not going to do it we're not going to do i