if you've got an introduction to make we're ready to hear it good morning your honor is in may it please the court this court should find that counsel was ineffective for failing to request a competency hearing the morning mr pompei entered his plea on march eleventh two thousand and thirteen the undisputed facts demonstrate that this case was that i thought the issue was what he was in effect for failing to bring to the court's attention evidence justifying a competency hearing the issues are those two issues are very related your honor the claim that the court granted a certificate of appeal ability on is the failure to request a competency hearing but that does take into account information that the trial counsel had  have some evidence that you need to bring the court's attention precisely your honor however the supreme court in this court has also recognize that in addition to bringing forth additional evidence to the trial court counsel also has an obligation to essentially bring competency issues into focus for the trial court which would similarly look like a bringing forth the competency issue and requested but this is not one of those cases where the court didn't think there was a competency issue the court was aware of all the evidence that counsel was aware of once and not that's correct john or at least the court had all of the evidence that counsel had however so it's not a failure of counsel to bring to the court's attention evidence it is a failure of counsel and not to bring the issues into focus and to request the hearing i know but it evidence itself counsel had nothing to brain respect that the court did not know counsel did have at least an independent obligation that the court did not tom an obligation to tell me a piece of evidence that counsel had bearing on competency that the court was not aware of your honor dr marvin the final competency worth noting your honor that mr pompei had been on either the same or generic versions of the same psychotropic medications and i thought that was in his report and went to the court your honor is a record is entirely clear as to whether the court had the opportunity to review and whether counsel had the quite clearly had all the competency hearings and that was front and center for the court you're not doubting you're not saying that the court didn't have all of those companies hearings and the only medication information was drivable from those competency hearings right and this was the central issue for the court yes your honor i apologize not the competency hearings throughout the proceedings j was competent to stand trial and was quote attempting to appear severely cognitively impaired to avoid the potential repercussions of his behavior  doctors on a vacation and at the end of the day even the ones who had originally said he was incompetent turn around and say he's competent what possible reason was there to believe that if the trial lawyer had said we need more we need different we need a new shrink we need another hearing that that would have prevailed your honor there is a reasonable probability that  prevailed because had counsel brought her worry about her reasonable worry about her client's competence to the port to the court the court would not have had discretion as to whether to hold a hearing because the supreme court's decision in pete would here your honor the trial counsel would have added two factors to the inquiry the first is that the request in and of itself is often a heavy factor in favor of granting the hear of it is if the counsel can and can say i'm making this request because i've got a personal relationship with this with his defended and i've seen him act or radically in my private communications that might be new information but that wasn't offered here that's true he on or in it again i have two points in response to that the first is that counsel not the court had an independent nation to look at dr marvins report and recognize that mr pompey's medication was wholesale changed his previous i could try but of course that wasn't enough that's his conclusion yes your honor but in so what is what is the lawyer supposed to say in paul it's true that martin says that he's competent and that he's modeling a ring but he also recognizes honor she could have been put on the stand and counsel could have cross examined her as to why the medication was why the medication was changed when presumably he had been found and not presumably on her he had been found compet on the previous consistent medication that was either the same generic versions of and she she explains it to the court this is why i think you competent in spite of the fact as i noted his medication changed how does that help your client that might have been enough your honor but that is precisely the constitutional guarantee that mr pompei was deprived in this case paid this have a constitutional guarantee to cross examine to have a attorney who insist on cross examining an expert witness who has an opinion contrary to your client calling that expert witnesses the so witness at a hearing to reiterate her opinion which is contrary to your position case on hold for eighteen months in order to determine competency and i had i'm examining and by seven separate qualified doctors on at least eight o so one can hardly say that he was too quick on the trigger here so one can understand why a lawyer might not have been disposed to make that argument again you've got to show us that that was ineffective that  fell the need some standard of competence and that it will likely was prejudicial and it was it did fall below a reasonable standard your honor because not only does mr palm bay have a cyclical and aggressive illness which was demonstrated by the record was to competency excuse me to incompetency adjudications by the court over the course of the proceedings but he told the trial judge that he did not understand the proceedings  manes it comes and goes and yes your honor the best way to find out is to have an evaluation close to the date of the play here with us your honor in this case was four days before yes your honor however are you arguing for our right to have an evaluation on the morning before the plea hearing begins at twelve thirty that afternoon not all of the time your honor but when there are facts in the record and the defendant is so you are arguing i mean you're legally not a unit the district court heard because that's not available to you so you're arguing only that it was there or that the lawyer didn't bring up something that the court already knew so so we're not worrying about whether that is you cordier because that's not being challenged so we're kind of assuming that is the court did not hear no proof and yet you haven't shown anything to differentiate the knowledge of the lawyer from the knowledge of the court your honor it is precisely that the lawyer had the dr marvins report and had an independent obligation to look into it moreover there is evidence throughout the record that mr pompei and his counsel experienced a breakdown in in their says that even though the judge in the lawyer may have the equal amount of information there is a constitutional right of a defendant for that added weight that added the defendant has a constitutional right to that extra gravitas not to that extra gravitas your honor however the defendant does have a constitutional right for his counsel to affectively represent him and bring competency issues to the court when they are an issue and when the lawyer has a reasonable doubt as to her kind of competence based on the objective facts of the case that that lawyer does have an obligation to ask the court to halt proceedings competence is one of the only instances in the criminal process where all proceedings must halt until all adults are dispelled and in this case with mr pompei telling the court that he did not understand that his lawyer didn't want to talk to him but he had additional questions that his medication was affecting his ability to understand that dr margins report noted for the first time in these entire proceedings his prior consistent psychotropics were entirely stopped and a new psychotropic was purse cried that he had previously abused when he was a teenager and with mr pompei seemingly asking the court questions that his counsel should have answered before he entered the court room that morning it was ineffective assistance for his counsel not to stand up umansky question did he ever raise a paid claim in the state court or the district court no your honor he's raised ineffective assistance of counsel claims throughout  weiss doesn't waive his argument thank you mr weiss you're perfectly welcome to argue but you're not required to do so you can stand on your briefs if you wish  i've complained only casion actually complained vocally after in the court at emory one time that the case was so one sided that the argument that the the team that the case favored didn't really have a chance to shine because you had to have some difficulties in order to show that that hasn't been your problem and i have to say i haven't been invited back to emory since then you're always invited back we appreciate your service here today and thank you very much f