conducted an independent evaluation of tours and decided that it was necessary to request a competency hearing before the immigration court pursuant to that motion the immigration court also found tours to be incompetent despite these independent evaluation which clearly raise a substantial and legitimate doubt as to towards his competency the district court erroneously denied his twenty two fifty five motion without a hearing the district court also erred in relying on its incompetency finding to deny towards his claim of ineffective assistance of counsel towards did not need to establish that he was incompetent in fact in order to prevail on his ineffective assistance of counsel claim turning back to toward his claim that he was incompetent in fact at the time he pleaded guilty the evidence nevertheless presented was sufficient to raise a substantial and legitimate doubt as to his competency at the time he pleaded guilty in particular we have the competency evaluation performed by incorrect dr phil actually based his i q based his evaluation not only on tours as low i q which demonstrated that he had a deficient level of understand he was mentally retarded but pharaoh's analysis was also based and his evaluation was based on taurus's performance on the cast him or the competence assessment for standing trial for defendants with mental retardation dr phil determined that torres was unable to understand less than half of the basic legal concepts pursuant to that assessment and that he could not meet the burden of competence now the i q level that's been discussed much in the briefing is significant in that it demonstrates because tories hadn't had a low i several years ago back in one thousand nine hundred five at a level of sixty two sixty three and in the more recent performance on the way scale test when he was determine to have an i q of sixty two this consistent level of q demonstrates that over a prolonged period of time torres has been suffering from mental retardation could you go back to at the beginning you said that you didn't have a burden to show that he was in fact incompetent with regard you can you tell me what is the proper glynn's for which we should evaluate this yesterday there's actually two different standards at play here one governs his claim of in a competency in fact and for the incompetency in fact claim towards us to first present sufficient probative evidence meets that burden which he felt which we feel he has in this case he merely has to prove his incompetency by preponderance of the evidence after that point now that's a separate standard from the standard which governs his claim of ineffective assistance of counsel to meet his burden for ineffective assistance you know that's right i apologize if i'm not and knowledge it's hard to hear in this courtroom yes or no to meet his burden for me to meet his burden to establish an ineffective assistance of counsel claim he has two separate test yesterday show that the performance of counsel fell below an objective standard of reasonable does which we believe we did in this case in two he only has to show a reasonable probability of incompetence sufficient to undermine confidence in the outcome of the proceeding now this reasonable probability test is a lower test than a preponderance of the evidence and it does not require that he demonstrate that he was incompetent in fact in order to establish that problem of the test so this is what you're going on not on the incompetence in fact we're advancing both arguments trying to we're arguing that he was incompetent in fact but should the court not believe that he was incompetent in fact we can still prevail with our ink ineffective assistance of counsel claim because to establish ineffective assistance of counsel we only have to show that his attorney failed to investigate when a reasonable attorney would have and that that failure to investigate cause tori's prejudice because there was a reasonable probability that he was incompetent sufficient to race sufficient to undermine confidence in the outcome of the proceeding proceedings that counsel received various medical records which demonstrated tori's medical history of cerebral delay dysfunction and damage despite acknowledging receipt of those records despite being on notice of torre's his medical history counsel did not do much  other than spend additional time with tours he did not investigate further he did not for example refer tourist to a psychologist he didn't refer to refer him to a psychiatrist he made no attempt to evaluate further whether or not torres was competent to proceed with the proceeding and counsel's observations and his affidavit or he states he spent more time with tories are insufficient to establish that torre's was competent that time counsel as a lay person lacks the the training the understanding in order to assess appropriately whether or not torres was competent to enter his plea i have a question about that if we were to determine that the record conclusively establishes that he's competent you would lose on both products right actually standard of for the ineffective assistance correct then how can you show prejudice because the prejudice analysis there is lower than the prejudice then what's necessary for the incompetency emphatically the prejudice prong only needs for torahs to establish a reasonable probability of incompetence sufficient to undermine confidence that if he is competent if we find that the record shows that he was competent at the relevant time period maybe not eight years before and not two years after but at the day was competent you can't meet that i respectfully disagree or i do think that he can meet that prong because it's not required that he show that he was incompetent in fact in order to establish prejudice he merely has to raise a reasonable probability of being in co and he can't raise a reasonable probability of incompetence if he was in fact competent well again reviewing the record and the boogy on test which is laid out with his word this court itself said that it was not necessary for the defend it to establish incompetence in fact in order to prevail on the prejudice problem it would it would write that out of that there would be no place for that in the law if that were the test ok if you were to win on your first argument asking the court to do is to remain in this case for a hearing to the district court or way either way because for example with regard to the claim of incompetence in fact again the defendant or taurus presented sufficient evidence to raise a substantial and they didn't doubt as to his competency we think the district court should have held the hearing on the competency issue should have allowed him an opportunity to present his claim in full before the court i know that there's been much debate both in the arguments between the parties as to whether or not george was competent but there was sufficient evidence before the court via d fails assessment via that the assessment that cause the department of homeland security to seek a competency hearing via the immigration courts finding of incompetency all of these things raise a substantial and legitimate doubt as to whether or not torres was incompetent why is  it argued that the harder claim first why are you arguing the harder thing for for you are doing the easier thing if you say that it's easier ineffectiveness and you get a hearing either way well your honor with regards to the in effect innocence of counsel claim we believe that the record clearly demonstrates that he was incompetent fact with regards to the performance of defense counsel as to whether or not he performed a reasonable investigation we also believe that there was a failure on the part of counsel to reasonably investigate towards incompetency he had his possession the records which raised a sincere doubt as to whether the torch was competent to proceed with those proceedings having those records in his possession he didn't investigate further he didn't look further into whether or not tours understood the nature of the proceedings against him he spent more time with them is what he says and that's all but he and defense counsel is not an expert who is capable of making that assessment toward his competency on his own for the prejudice problem of the analysis with regards to ineffective assistance of counsel claim yes the tories did not need to establish that he was incompetent fact in order to meet that promise he only needed to raise a reasonable probability of incompetency and again the evidence here really covers both bases because of the evidence that was presented regarding taurus's incompetency it supports his argument that he was prejudiced by the failure of defense counsel to reasonably investigate because had defense counsel investigated had he referred him to a psychiatry's had asked for a competency hearing it would have undermined tori's ability to enter into a plea of guilty in the case that's the argument that we're dancing here now with regards to the district court's decision aside from getting the standard wrong with regard to the prejudice problem the analysis the district court also errors in other ways for example the district course places under reliance on tours performance at the planes and in some hearings in order to support his competence in finding the district court was not the court that held the three arraignment hearing or that took toward his guilty plea and so the district court is merely reviewing coley a transcript of proceedings were in torre's was one of thirteen other defendants pleading guilty in a group hearing before a magistrate court judge the same way one of the principal things concerning the district court is the timing of the evaluation of competence and he was not persuaded the decision by the immigration court the more recent decision gentleman timing at least a set of facts on timing of well in the fellow's company you said he was one of the numerous defendants who were pleading but is not a section in the transcript listening to seven other people answer the same question before him he's repeating and giving the same response others are giving i'm not saying the court can't look at that to decide what in dish of competency it gives i'm just saying it doesn't give a great indicia or indication of his competency at the time he pled guilty and his response is also are pretty consistent with what dr verelst dr failed state in his evaluation that tori's is someone who is very suggestible he tried to demonstrate competence or an understanding when he in fact did not have one through that lens where he's being led on with certain questions where he's already been given the answers by the other person's answering in front of him it's not so surprising that he doesn't at that moment say well wait i'm not co i think it's difficult to expect that he particular given doctor failed assessment is he someone who's defensive was not necessarily wanting to admit that incompetence he would have raised that issue on his own and also viewing the entire the proceeding to and his facts and his parents his family attempted to inform counsel they did what they thought they were supposed to do by letting his defense counsel know about his medical history so that counsel who was trained would be hired to represent him would take the appropriate action to present don't quite understand the question the circumstances of the affidavit how did it come to be that he submitted this affidavit i'm sorry i forgot that i believe that in response to the twenty two fifty five motion filed by tori's the government's respon their client i mean that's just that's odd to me it is are drawn to but i would also point out with regard to that affidavit that it does not clearly establish again that torre's was competent to plead guilty the affidavit to the extent it discusses competency and the efforts made by defense counsel there will fully deficient reasonable counsel would have conducted further investigation the prudent attorney would have asked for a competency hearing and would have asked for a competency evaluation again your honor we ask that the court in this for further proceedings before the district court so the tourist tours may have a he please the court my name is angela robb and i represent the united states i think to begin that what needs to be clarified is the standards of review for purposes of his ineffective assistance of counsel i mean i'm sorry for purposes of his incompetency in fact claim they've appellant was required to show by clear and convincing evidence sufficient facts to positively unequivocally and clearly generate a real substantial and legitimate fifty five your brief very helpfully points out of date nine hundred sixty seven at least if not earlier than that you know what twenty to fifty five of this is not a trick question because i don't know if you know what the equivalent of twenty to fifty five said at that numbered whatever the number was at that time nine hundred sixty seven did it have any kind of general language such as is in twenty to fifty five now which doesn't have anywhere near that kind of requirement i'm not aware of any statutory  specification of those requirements yours bruce which is the case is that even talk about twenty to fifty five at the bruce case is your honor specify that for purposes and again this is not understand just a yes or no i'm not just want to go down rabbit trails and i want to know is does bruce capture this sort of of openness to these petitions that twenty to fifty five does without basically saying you have to prove your case before you can bring your case time when a person brings up incompetency at a trial when he brings it up for the first time the haven is proceeding that the court is not required to go further to investigate that claim unless he makes a threshold showing now once he makes the threshold showing which is the difficult the the the the standard that i just cited then if he had made that showing then the court at that point would proceed to the second to to make it fit together and you have a new briefing made it fit together with twenty to forty five but it does seem to be an inconsistency there that we don't have a lot of law in this that's more recent that is what is the most recent case such wrestled with this and said that in fact that you are right that the standard is still the right standard to be using for on previously on ray's mental competency your honor i don't have the specific dates of the cases that are cited brief if the court would like me to address them in the supplemental briefing i would be more than happy to address your concerns and i'm not i'm not making that request we can all right well can you tell me if the standard is that honor i don't think the record would support that conclusion i think the evidence that that the that the appellant submitted just doesn't meet that cut it doesn't raise the bona fide why doesn't it if well if he was already it's just like it's doing that he had this window with because he was fed serious problems before for a long time he had serious problems after as and so this is one day of clarity that he happened to that question if there has to be a thorough analysis of the evidence that he did produce and when you when they discussed the documents that the parents provided to the attorney at the time of the plea so those documents of course would not have included the psychological report the new testing that was conducted in two thousand and twelve so it's the timeframe is based on the the documents that occur that existed at that time at least for purposes of what the attorney knew and when you evaluate when you go through that analysis you a detailed review of the documents that were presented most of those those medical conditions that were  discussed had to do with the school records pertaining to speech impediment there was motor skill disability epilepsy seizures so the documents themselves from that time none of them had any reason to raise a doubt as to his mental competency when you take it in the context of the attorney's communication with his client at that time and when you look at the attorney's affidavit and it has to be in that context to see what he was dealing with at the time he stated that he met and talked to the appellate the appellant and his wife in person on the phone and in writing he explained the proceedings against him he explained his defenses the charges the immigration consequences he said he spent more time than the normal not because he felt he was incompetent because he did he he was aware  of perhaps a less when you compared to an average person that he was not as intellectually average as anyone else so his main end and the appellant's main concerns at that time in his discussions were the immigration consequences that should shows a degree of understanding of his consequences it's a rational understanding of the facts that were performed he ultimately decided the  decided to go to instead of going to trial to avoid immigration consequences he was going to go ahead and release the material witnesses so that he could get a lower sentence in the hopes of a lower sentence mr bagley the attorney even put on the record that he specifically advised the appellant that he would be deported and he said that at the sentencing hearing so when you consider and also when you look at the the police hearing the sentencing hearing yes they're very short answers but when you look at those answers they're appropriate they're not all just yes yes yes he was given no answer when it's appropriate so you have to consider the context of what this attorney knew from his observations so then could he a followed just the other people before him i'm certain he could have your honor but in terms of specific interaction the sentencing transcript definitely shows specific one on one interaction so there's no indication in the record that he was not aware of this group that he was just following what other people were saying because a court would add give the  question go through the list of people and then address mr gore's what's your answer if not in that language of course and of course he would give the answer that was appropriate and you're not saying though that the attorneys evidence  attorney you're not just standing on the affidavit eleanor they do it because there's some adversity there you know and we not know i think the attorneys affidavit is significant to show the court or to explain what his ability to communicate with it was at that time so when you have that situation that his proof would have to basically to show with stanch legitimate doubt or to show that the attorney was somehow derelict in not investigating you have to look at what he had at that time well he did have the the family members coming up and giving more stuff why wouldn't that say hold this train we're not going to we're going to go ahead with the other seven people or whatever before him but we're going to wait on him because i need to go through all this stuff and figure out what the attorney did his affidavit says he did review the documents and that those documents did not change the pinion right there on the spot i mean how does that is satisfactory would that have put a normal attorney on duty that oh i need to stop on this one there might be a problem again aaron and i thank you for pointing that out the point here is what a reasonable attorney would have know you wouldn't you i mean i might ask what you would do but it seems like an average attorney would stop with that i've got all these other people this is all going on but this one there's some issue and i need to go back and check on it whether or not there was any delay or but it should be some delay once if the family members come in handy something and talk to you at the thing and we want to raise something you need a recess or something something at least that's not my understanding and that's that's not when he gave information i don't believe that's with the father's affidavit may have said something about meeting him at some point to give him the ok you think it's before it's not on the day of you know i'd have to check the record in your honor that's my performance was mission is to actually look at the records that were there and the records that had to do with the school there were medical records and they don't show any reference to whether or not he had an inability to communicate so again if those records don't contradict what the attorneys observations were of the defendant then there would be no reason for him to to  question his competency the medical report for example dated october ninth it talks about and opponents brief goes into various medical issues but when you actually look at what those medical issues were have to do with problems manifested in difficulties in motor skills or motor aspect of speech at one point he had an i q of eighty one which again cuts against the the the argument that his his neonatal issues somehow caused him to be mentally incompetent now there was a an incident in eighty five which i'm sorry ninety five i believe it was but again i think there was a if you look at the actual records there's the discusses again language disorders psychomotor development so if there's nothing in those records that demonstrate some type of incapacity of this defendant to actually understand to meet the test for incompetent competency sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding could you address the reply brief observation that the answers at the hearing actually show confusion and not in their non responsive and they don't actually show that he's making eighteen of the brief and it's talking about how he's asking if he can go home he's he's not he's not responding  in a way that responsive to the question and in fact the court apparently stopped in clarify something because it doesn't appear that he's following if i'm not mistaken your honor that may be a reference to the think the evidence before the court including all the medical records would support the conclusion that he was not incompetent at any point the could you want to address his concerns you sure that there was there was one question where it was asked something about he was given the opportunity to that this is allocution on part of the offended saying whatever he has to say to ask the court for what he once and saying i don't think it's inconsistent with finding that he was mentally competent and also in the sentencing hearing another thing that supports a mental competency determination is that he even talked about his awareness of a state case and the court mentioned that he had a theft case and he knew at that time the theft case was going to be dismissed he told the court that he had spoken with his attorney in that case excuse me and he told the same to explain that the dismissal was because he had returned so again he's showing in the awareness of that you've talked about from mental competency being raised after the fact to be an easier case to say that the motion of the files on the records of the case do not conclusively show th say the least a hearing ought to be granted i think do you say to that oh no i think your honor it's not the point the point wouldn't be whether or not a hearing would add anything or take anything away from from the court but i think the point is that he had a burden a threshold burden to me and because of the the nature of the evidence that he produced the court could make the conclusion that that's not enough and when you look at and there is question when you look at the the competency report that was done in two thousand and twelve but then let me ask you this because you're again you're right this threshold does seem to be recognized  but would you say that the records before wes conclusively shows that he was competent i don't i know i don't know your honor i wouldn't be able to answer that question but again conclude you have to consider well is how valid is this cycle psychologists report and when you look at it there's there's conclusory there's there's speculation there's conclusion and it was based on testing that was done in two thousand and twelve but there's even it goes through the records from his childhood and it talks about all the records which relate to psychomotor development seizures it talks about the drop in i q mostly and when you look at the the record there's a huge leap with regard to what the testing is today versus that his i q must be that he was incompetent back then but when you look at the here case we know that i q is not alone sufficient to demonstrate and but maybe that means you should have a hearing and have a doppler tested and figure it out and again if there wasn't that threshold showing your honor it's are and it certainly is within the discretion of the district court to make that finding but if the district court found that what these that these documents he produced did not meet the threshold which is a very heavy burden then i think it was certainly within the court's discretion and i mean could i ask quickly about i'm concerned that the trial council did not seek any guidance in this area and just knew that there was an issue but made a determination on their own that it wasn't didn't matter and it seems like that this would certainly be something that would be explored with the medical professional that he  know that we are really into less interested in the judicial system and low i q and we have a number of cases that have come out in the past year in the supreme court i mean low i q is a gets used some questions as rational logical thinking and would want the psychologist said that they think it was a problem so i think that issue is basically if if there's merely a low i q that you're concerned with it doesn't necessarily mean that he's incompetent and at that point i think an attorney a reasonable attorney should be able to rely on his observations of his communications with the defendant thank you you thank  regarding the performance of defense counsel i wanted to get back in because it was a question a moment ago about whether there was any delay whether that was an indication those proceedings that defense counsel didn't thing other than simply spin as he alleged more time with the diff in there was not the in this case occurred on may twenty sixth two thousand and nine or short four months later september twenty ninth two thousand and ten this is when the rearrangement proceeding occurred this is when tories pled guilty along with thirteen other defendants and the court also had a question as to whether group pleadings to proceed along the texas border they do the real arrayed along the border particularly with immigration related offenses such as transporting or unlawful entry where you have a group of spanish speaking defendants there are new proceedings now with regard to this case again getting back as well two points made regarding the sentencing hearing i think that when you get to the more substantive questions at the scene in seeing hearing to demonstrate that torres lacked an understanding of what was happening if we take his true defense counsel's affidavit that torre's understood he would be deported if by that time we get to sentencing torre's should have known that he was going to get deported because he had already pled guilty why is he asking for a second chance why is he asking for another opportunity it does not make sense for him to ask and request an opportunity to go home or to somehow be released when he knows that he's going to be deported that that's a little nonsensical and maybe one last mercy seeking last desperate move to sas my time but it's also your honor indicative that he lacked an understanding or he lacked a comprehension of what was happening during the course of those proceedings similarly his response initially when the court asked him about the pending criminal case in their county his initial response was what case he didn't understand what the court was referring to and it was only after the court redirected him that he gave another non responsive answer by saying oh yes that's going to be dismissed when the court was actually trying to inform him well whatever since she was going to the district what was going to issue in this case was going to be tacked on to the sentence for the state criminal case now with regards to the medical records that tours provided to defense counsel and the evidence before defense counsel that existed prior to plea i think it's important to note defense counsel his own affidavit and as acknowledged by counsel today he recognized tori's had a limited understand he recognized that tori's is level was less than that of a normal person that should have been enough for two to trigger for the investigation by hand do you have any case that says failing to do that is a deficiency yes your honor this this court case in buchi on were and it held that it would be a very rare circumstance where a decision not to investigate would be reasonable after counsel has notice of a defendant's mental problems here counsel had notice of the mental problems and he failed to conduct an investigation and as court stated there that would be a rare circumstance indeed were a failure to investigate would be reasonable that f to investigate in this matter is rather significant and it should control this court's decision regarding the ineffective assistance of counsel claim again your honour's what we're asking for is a hearing ultimately the test is whether the motions files records before the district court conclusively show that torre's was not entirely to relief they far from met that standard this is not a case where tourists failed to conclusively show or comply with the record shows that he's not entitled to relief we believe is the title to hearing and should be in these proceedings should be remanded for him before the district court thank you this case