calls into question the entirety of all the various anomalies that occur throughout these proceedings mr love upon arriving at the metropolitan correctional complex in san diego for an evaluation somehow even after talking to his trial counsel thought he was headed to springfield missouri for treatment and the mere evaluation when he got to san diego he found himself subjected to thirteen different psychological evaluations two psychiatric evaluations and days and days of testing for it some sixty days but it's the the report or the competency words very seldom used in that thirty plus page report or thirty some page report that i would respect the urge the court to focus upon this is a twenty to fifty five here in the burden of proof is on the moving party to showboat to for letting a plea offer expire while he was out at the b o p for an evaluation is that correct that is correct john and that's this is so so what what is there more than one playoff are there seems to be  in a playoff for this describe than mr love in his and his filings for one hundred and twenty months i think that was the play and that that was the offer i'm not sure that there was more than one there is a lot of confusion in the record and i think that's why they hearing as judge george pointed out in the frame with statutory framework for this is a movement is entitled to have an evidentiary hearing unless the motion and the files in the records of the case conclusively show that he's entitled to no relief and that's not the case here mr love's position is that he was offered that one hundred and twenty months plea agreement he tries to tries to accept it looks like from the record but as mr krieger his trial counsel points out it had to be somewhat frustrating to represent mr love mr krieger articulately points out that depending upon the medications he was on or not on and this is that sense in which he explained to judge gerard what happened the plea agreement that depending upon the medications he was on or not on depending upon his anxiety level his ability to process comprehend even take my advice listen the reason for me and family members was fleeting i mean we would go from apparently in agreement on certain things to total disagreement on the same subject subject matter and today well and at that hearing there's discussion of a what sounds like a different because they're talking about not being able to reach an agreement about quantity which results in a sentence or a range of significantly above one hundred and twenty dollars so if so is it your is it mr love's position that there were two separate one hundred and twenty month offer and then the one that was discussed at the sentencing hearing that's that's an error confusion and i don't want to represent you that i have a clear answer it's mr love i think just one more indication that he's confused he gets confused at this at the rule eleven chloe qui with judge wart where he can't understand it has to have a question about it does not understand the difference between a trial guilt or innocence as opposed to determinations at sentencing issues with regard to quantity and acceptance or responsibility gets easily confused there's a lot of confusion throughout and there's all sorts of different references to him being on the medication or not on the medication he's diagnosed with a myriad of disorders posttraumatic stress disorder a d h d and the psych psychologist of the forensic psychology is in a devon in from the record though that his counsel at the time they either thought he was potentially incompetent to plead or perhaps even had a defense in the underlying case so how can it be  assuming he believes that to go ahead and have him examined well that's and then he can't control when the government withdraws the plate rayment cannie i so where's the in effect of the potential ineffectiveness i mr love would not want to abandon any position but i understand your point judge with regard to he has all these red flags about he the trial counsel has all these red flags he asked for competency hearing in the meantime the plea for whatever reason is apparently withdrawn the plea offer but then what happens is the i think the report the twenty eight page report that grudgingly says well she doesn't quite use the word competence but she says he understands the nature of the fancy understands can cooperate with his attorneys provided provided he's on the medication and i think that's what the district judge missed it's what the government sites language was was more along the lines that if he's not on his medication they'd have to re evaluate it now doesn't mean that didn't necessarily if you're opt off the medications that you become incompetent plus on top of that you're sitting at the sensing hearing in the lawyer said i was concerned he's now on his meds we've had a lot of conversations i'm confident now this a lawyer has practiced law for a long time leader years and we all i mean you know you're sitting in in a courtroom with with experience defense lawyers they usually a pretty good position to tell you have somebody is really not with it and when somebody presses confidence that the person is competent isn't that and that's consistent with what the doctor said isn't that enough so why not i mean are you are you in a fact that i think it's i think the problem is that those red flags you have his trial counsel experience competent attorney heightened warning that he needs to be reevaluated and reevaluation is exactly what the forensic psychologist dr gilbert gilbert advocates he says if he's off his meds and he is off his meds and there's all kinds of references in the record that he goes from when he was back on his meds at the time of the sentencing at the time of the sentencing but not at the time i think the constitutional goal is to have somebody knowingly intelligently voluntarily and intelligently especially plea make enter a plea of guilty and that's not what happened in this case how frequently are people ordered to be reevaluated in the dis and brasco i don't think it's that big of a concern before a man is sentenced to up roughly one rd of his present life span to at least give him the opportunity to make sure that we were before we put him away for that long that he understands and knows what he's doing it's almost like having a translator an interpreter given this gentleman's marriot of problems in his litany of disorders i sent him into my  morning may it please the court counsel i'm sarah fullerton i am assistant u s attorney in the lincoln office of the u s attorney's office for the district and brassica i represent the government in this case i was counsel during both the twenty to fifty five proceedings and the police proceedings in the district court and i think it's important here to remember that we need to separate out the two issues  mr love has raised two different issues he claims a parent in essence he's claiming he should have been allowed to plead to this plea agreement that he says he was offered although he if you read his his he says he was offered this one hundred and twenty month plea agreement however he also complains about the fact that his attorney never showed him that agreement so this is we don't know where this one hundred and twenty month agreement comes from but that's what mr love is now telling current counsel that that's what was offered to him that that's that's plausible if he's off in california for an evaluation the bureau of prisons and he's only communicating over the telephone i understood him to be saying i understood there's one hundred and twenty months yeah i take that the attorney says well getting competency evaluation we really can't sign anything right now and so he said don't worry about it just just hold on and i and i and i appreciate the idea that the prosecution is not required to offer up any particular plea agreement or hold one open for any particular period of time but in your experience would you have  considered holding on to such an offer until he came back and and what it was was deemed competent seems like that's his that's his claim is that my lawyer didn't even try to hold on to this st plea agreement i got back and now i have to start all over well a couple of things that are important to remember here st of all any plea agreement that was offered to him and we don't have we don't have in the record what the plea agreement was that was offered to him because he never presented that to the district court but any plea offer that was made was made prior to the original time we had set for a plea hearing it was at that point that mr krieger having heard concerns raised by mr love's family members people who knew him well that it was at that point that mr krieger decided before having the plea hearing we should probably get an evaluation of mr left to see if he was actually competent to enter into a plea and that's what judge gerard was basing his ruling on was the fact that mr krieger was it was in it between a rock and a hard place sensually in terms of representing his client assuming that what mr love said was true and that's what mr that's what judge gerard used to make his decision was assuming for the purpose of of making the determination that what mr love said was true about what he had been offered while mr love had a right and to counsel about entering a plea and to be able to enter a plea his counsel also had to make sure that he was competent to enter that plea and i understand that and i understand that that the duality there and i think to gerard recognize as well that's not where i and i as not what i understand the claim to be and i understood in the plead in the in the the briefs that that mr love is not saying my my lawyer was ineffective for sending me off for a competency evaluation that's exactly what he said well the way i understood it was that and i thought that that counsel disavowed and perhaps he can answer that upon rebuttal but that it's i went off to a competency evaluation there was a plea agreement i was very interested in and my lawyer didn't do anything to hold on to that until i got back to talk to the u s attorneys often say hey can we hold on to this particular plea agreement until i get that it may or may not have been meritorious but that's what i understand the claim to be well i think he's making a number of claims and i think he is probably making the claim that you're stating now as judge rendered pointed i mean look at this record i mean you know let's find out what offers were on the table and when and who did what and why i mean i don't think so because as judge gerard made this determination assuming there was a plea offer as  described by mr love and if you have no in judge gerard's opinion he said in a footnote it was not convinced that that was really the case that there was substantial evidence to say that it wasn't the case but assuming as he had to at this point to determine whether we should go to a hearing in this he's looking at if the as as whether or not the allegations that mr love made on their face were sufficient to get to the hearing and his determination was that mr krieger was reasonable in determining that before he allowed his client to enter into whatever plea agreement he should at least make sure he was competent and so that's what he did and there was nothing that mr love has presented to show this court that that was an unreasonable thing for an attorney to do and he certainly hasn't met the presumption overcome the presumption and under stric which is whether he should have had a nd evaluation mr love cannot show that his counsel who has had a great deal of experience was wrong in determining that he medication what the doctor actually said was that if there was a change in medication somewhere down the road that might be a reason to have him re evaluate it but there is nothing in that evaluation that says he his competency is contingent on being on particular medications that was simply as i understood it if somebody tried to change which medications for example he was on changed the  drugs then it might warrant a new evaluation down the road to see if he remained competent on the new medication but she did not link competency to being on the particular meds that she had recommended and as judge or noted in his opinion that was a medical recommendation as opposed to a competent competency determination in terms of for example she was aware that the defendant had not been receiving a particular drug in one jail because it was against their jail policies so he thought she would put that into the report in order to assure he would continue to have the option of getting his medications to the district court make a competency record during the plea proceeding not specifically but she did you know she didn't make a specific competency determination the magistrate did not but she did go through all the questions with him including the questions about whether or not he understood the difference between a trial and the sentencing phase mr krieger actually raised that during the plea hearing that mr love had some questions about whether or not he would have a jury decide the amount and that sort of thing and she went through a  defendant asking him if he understood that all was happening at the plea time was a finding of guilt and that those sensing issues would be found later in the sentencing process and he said he understood he gave the appropriate answers to all those questions so there was no abuse of discretion in denying the defendant a hearing in this matter the record before the court showed that counsel was comp acted appropriately at the time of the st p hearing by not allowing his client to enter a guilty plea at a time when he was concerned that he might not be competent to do so and there was no ineffectiveness at the time of the actual plea counsel allowed him to go ahead with the plea where counsel believed that he was competent he was on his meds whatever meds he had been off of he was back on insufficient time and so i would ask you to affirm the district  say that's not the deal there was no plea they don't offer any evidence there are plenty of unanswered questions and there is a do you think do you read the the petition to include what i have described to the absolutely and i think there could be expert testimony to say there may have been opportunities to at least explore with us attorney's office ok we'll take that deal but st i want to make sure my client is confident or competent keep it open for sixty days re movements entitle to an evidentiary hearing all these questions could be resolved in the evidence you're hearing and i would respectfully submit that there is qualifications to the way the psychologist who is not does not prescribe medications the way she answers the question about his abilities she says do not discontinue that medication he does have problems she suggested can turn you in the medication it's if it clee at the top of please ensure that he remains on these medications his medications should not be changed his medicaid if his medications are changed difficultly his mental health stability which i argue she uses the same way she uses competency