just ineffective assistance of counsel but deliberately and of assistance of counsel his paranoia interferes with a rational understanding of my role and he surely doesn't understand the nature of a public proceeding in this court is not a clear error standard it is what courts have called a hybrid standard or this court has called a species of clear review the supreme court has said that the district court decision should be overturned when although there is evidence to support the trial court's decision still the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed not whether the decision is clearly arbitrary or a new one the well known constitutional definition applicable to const of competency is that if the defendant doesn't have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding he is incompetent and also a defendant must have a rational rational as well as factual understanding of the proceedings against him and that's from tusky i submit that the discourse erred when it hit and chose facts supporting competence rather than looking at the full picture of mr porter's disability first and foremost when mr mcwhorter met with his lawyers they were unable to discuss the case rationally every single lawyer said that you know what do you do with the what was a sixty two page report f confidence the sixty two page report is what i'm addressing at this moment your honor the sixty two page report is erroneous in many respects and i can move on to addressing the i would like to make the state psychologist who testified at the competency hearing however that state psychologist had had very good little opportunity to assess mr porter observing him on a daily basis and he took a number of factors into account from observations that were made on a daily basis and i think that there are essentially two problems with his conclusion as compared to the conclu disorder with hallucinations and in fact and that's at page seventy six fifty eight fifty record on appeal in fact that he there's a rule out lingering on that first page of the exhibit going on right yes your honor the well what dr a dark heart testified to at the hearing and i think a critical issue in this case is whether there is a combination here  not only a mental disorder but also brain damage and so what dr regard her explained at the hearing is that sometimes brain damage manifests in these very bring was actually a symptom of brain damage which could have been assessed by an early neuropsychologist through neuropsychological testing and would have defeated that argument that mr porter was milling free the second issue is that doctors should know himself testified that it is possible to mullingar some symptoms and yet still be mentally ill and in case that there were some diagnostic dilemmas with the defendant in that case because on the one hand he was obvious they say quote obviously attempting to appear emotionally  agrees that it's possible to to seek some symptoms but that does not rule out that mr porter was mentally ill or that he had brain damage i think one of the difficulties with that sixty two page opinion your honor is that it never takes into account the opinion of the attorneys who had the task of working with mr  medina supreme court case says that that is perhaps the most relevant information and in fact in this case every single attorney in a long string of attorneys found it impossible to work with mr porter and that was because not just of the psychosis but because of the way in which mr porter communicated everyone agreed that that communication was a real problem what he did he had pressured speech which means he talked to very very quickly he perceptor a bit when it came to his case he had these recurring themes that came up that he wanted to talk about over and over and over again and they generally had to do with his paranoia about defense counsel joining with the government about the court joining with the government and that he had what they call flight of ideas or disorganized thought process both doctors who testified a hearing agreed on this and so you know what attorney has repeatedly said who had to work with mr porter was that they couldn't have a focus conversation with him about his case he dwelt on the ideas about what the case involved there's stemmed generally from his paranoia and he would jump around so frequently that it was impossible to get  to what it was that they needed to discuss about his case the in the sixty two page opinion the district court found that mr porter's mr prohack porter's behaviors were volitional in other words he can control whether he met with counsel whether he met with the psychologist at f m c devon's isn't that correct and that's not correct because if two things first of all certainly the speech patterns everyone agreed that that was not and those speech patterns are what makes it it's not just speech patterns i mean a darker testified that those are signs of neurological dysfunction or rapid speech the rapid speech the flight of ideas jumping from topic to topic and the  about was how mr porter communicated and second of all if mr porter was paranoid he's that the choice that he's making is driven not by rationality which would be volitional it's driven by his paranoid delusion it is i mean i would say that in analogy to that is that if a two year old runs out into the street into oncoming traffic the two year old is hopefully disapproving hopefully or parents are told her know the two year old is disobey in her parents and yet running out into traffic is an irrational proceedings i don't think there's really a debate about that and then about whether he can assist counsel how do you get around the fact that i mean he's requesting venue changes those are particular jencks actually it seems like he's able to assist in the case if he wants to he but just an understanding of some principles of law and some facts again doesn't render mr porter's ability to use the legal terms ups rational and i give another analogy which is to a six year old who decides because he's seen his parents drive a car many times to get the key and unlock the car and get in and turn it on and he can get all the way there because he knows what his parents do but then when it comes to actually driving the car the six year old simply can't do it and that's that's that's where it is with mr porter he he can throw out those terms they don't necessarily make rational sense in his case and they don't make rational sense in his case and so his larger understanding of what's going on the case is severely limited i would say as another example on appeal mr porter has regularly written letters which are part of the record in this court saying that he wants brady an ineffective assistance of counsel raise so he understands to some degree that brady has to do with suppressed evidence and ineffective assistance or deliberately ineffective assistance of counsel has to do with his lawyers not doing things that ought to be done but he does not understand that those are not claims to be raised in an appeal there is are claims that have to wait for post conviction and so that broader understanding of what's relevant of what's important is very irrational and his is very much based on his delusions and paranoia about everybody working together in the system against him i'm going to move on if there are any other questions to the denial of funding for neuropsychological evaluation defense council moved dr a dark card their defense expert recommended that they get neuropsychological evaluation of mr porter and defense counsel actually twice prior to the competency hearing and once after the competency hearing moved for funding for a nurse like a logical evaluation under adverse is oklahoma the constitutional standard for granting the funding the funding should have been granted if it was to be a significant issue at trial or in this case at the competency hearing and under eighteen u s c section three zero zero six and way the funding should have been granted if it was necessary for adequate representation the defense in this case could not have been more specific in its request and the need for neuropsychological evaluation their defense expert was psychological i'm sorry neurological screening and the results of that neurological screening indicated brain damage specifically in the frontal in temporal lobes and then in addition as we've discussed there were atypical evaluation in the event that certain areas of mr porter's brain were found to be damaged the court assessed the request for neuropsychological evaluation using the wrong legal standard it frames the question as whether he was entitled to neuro psych about neuro psych illogical evaluation were evaluated by two prior doctors and the court found prior to this hearing that the need for near a psychological evaluation had not been as stablished the court actually prior to granting the funding for neuro psychological evaluation wanted proof at a hearing which simply isn't the standard you thank you justin has made please the court legal the competency is not determined by any one specific trait behavioral trait by the defendant it's not based on the time it takes an attorney to talk to them it's not based on the time it takes a doctor to exam rather the long standing test for competencies a two part question does the defendant suffer from a mental disease or mental defect and if so is that a mental disease or defect render that defendant incapable of understanding the proceedings or assisting his attorney in finding walter porter competent in this case to trial judges at the joint conference a hearing did exactly what this court has instructed them to do and considered the expert medical testimony that was put before them the expert medical records that was put before them as well as their own observations and they found walter porter to be competent to proceed and no matter what re analysis of the facts the court takes on review no matter how hard you look at the court's decision the facts in the evidence in this case will not change in the facts in this evidence in this case support the finding of the district court and that finding is not clearly arbitrary or on warranted the judge smith you pointed out about or ask questions about what are the facts in counsel's talking about the district court picked and chose facts here but that was not the case the court clearly said in its sixty two page opinion it clearly listened to everything it closely examined roger karr's report and his testimony but as you said judge castle you did have one doctor dr schnell had several months at the facility of examining mr porter he had the benefit of having other people at the facility observe him in the notes of others and making a decision over several months where dr akhter car had about fourteen to fifteen hours and whether there would have been more numerous psychological testing or whether there would have been a continuance dr eiger car would have never had the seven or eight months that d r chanel had and had that and is this court recognized and believe in the midnight case that can be a consideration the doctor takes it that the court takes into consideration and as far as the disagreement between whether the judge credited one expert over the other or whether ignored dr arthur car first of all the district court cannot ignore dr arthur course testimony specifically said so but the fact that it credited one expert over another is not a problem this was the function of the trial court as this court has said before and this court has always given great deference to the district courts who find make findings an expert situations and this court certainly does not relive a gate the battle of the experts that is the function of the trial court and in here it was done the court was tasked to make that decision in court did so and there are so very many are very many facts that support the decision i'll go through some of them on the first question first that the finding that mr porter was in the lingering that he did not suffer from  mental disease or defect several categories were given in testimony by dr chanelle but first the onset of late symptoms something very a typical of someone suffering genuine psychosis the records in the case his history did not reveal any sign of major mental illness until his arrest in this case when mr porter first met with dr akhter car he wasn't reporting hallucinations or symptoms however when he got to the devons facility he stopped those symptoms started presenting themselves and although he was thirty eight when the symptoms first presented both dr arthur carr and dr chanel said most of the time no symptoms will onset by the age of minute mid twenty's so  the district court now relying on he often volunteer how impaired he was he reported his own supposin suicide champ's which neither expert believed was an actual suicide attempt but one of i think the most one of the big ones that dr chanelle relied on was a symptom where mr porter reported seeing a multicolored tiger with a tail and said i was trippin i was seeing that well as dr chanel testified it's one thing to have a psychotic disorder it's another thing to recognize you're having the symptom while you're actually having the symptom and report it and that was another typical sign but instead in addition to that as you pointed out constantly telling the staff i'm drinking  the report i cut myself please note that even though this is not things that people suffer generally suffering episodes of psychosis would do in addition to that his other behavior was fine his hygiene was good his grooming was good he didn't need any help with anything and he was getting along or at least having interaction with other people at the facility in a recreation others another very typical thing was his reaction to anti psychotic medications while he was not while he was not presenting with any reporting any pollution nations before he came the devons when it devon's he became he was put on anti psychotic medications however his conditions got worse exactly the opposite of what the medication was supposed to do dr chanelle said seven months in his reporting still seeing snakes in the toilet that the doctor poisoned him he'd refuse urine and having command hallucinations all things that should not have been happening while he's on the medicine dr chanelle testified that's powerful data that there was no psychosis and this was a billing going and that's something the poor could rely on the volitional side which when actually to show that he wasn't suffering from a mental disease or defect and that he could also assist as lawyer is that the fact he chose not to talk to his doctors at devon's he was observed by staff members having conversations with other inmates having conversations with the correctional officers but he walked away from the doctors he was less willing to talk to  devon's as time went on but he talked more to dr robert carr and dr akhter carr testified that he suspected that's because he wasn't a government doctor so we have a way we have an ability not an inability to talk we have an ability to talk in choosing to talk to one person over another one doctor over another as far as some basic test that council was talking about especially for the newer psychological these were tests that mr porter would have had to take part in and the testimony showed he wasn't taking part in the basic test and that's something dr chanel's said in his experience only occurs volitionally that's a page sixty four thirteen of the record and also for sixty five hundred fifty eight seventy three the devon staff tried at least eight or testified he would have had to cooperate to have that near a psychological exam the court pointed that out that's one other reason would be pointless if he's not cooperating with basic tests it's not about him but to also see how this was a choice some of the evidence that the doctors relied on involved phone calls between mr porter and his mother and one i'll talk about real quick because there was a twenty eight j filed recently in this case about one particular call that occurred on march fifth two thousand and fifteen and we've cited in our brief and i'll just forgive me for the language where the in turn made notes and dr chanelle testified that one of the calls mr porter testified to his mom i'm going to fuck with my attorneys counsel of opposing counsel listen to the call and sent me the tape as well and it sounds like the statement is actually i'm fucked with my attorneys i think it's how i hear it as well but the internes notes six thousand and two to six thousand for the record and you'll see the internes interpretation but i bring that up just to clarify but if you look at that call and if you listen to that call and i believe it may be exhibit nineteen the record the call is going to be willfulness that statement aside the call shows he knows what he's doing and it's summarized correctly at page fifty seven eighty one in the report of the chanel report in six thousand and three he says very clearly that he doesn't want to talk to his lawyers he doesn't want to talk to the doctors all they want all they want me to do is plea out for the government they never file anything i want this is not someone who's can't talk to someone this is someone who is choosing not to and if you do listen to that call you're not going to hear rapid fire speech you're not going to hear someone for separating an issue you're going to hear someone on the phone telling his mom i don't want to talk to you about this case or listen to what i say showing awareness it's going on so that was another thing the district court had in the testimony of dr chanel likely judge cost or they also have something that you pointed out all the legal letters that mr porter was doing while he may have been legally incorrect with what he was saying it showed that he is listening to what's going on he's aware of things he was looking for a venue change he was bringing up the online commenting by former a usa pericope in the office he was looking for motions to be dismissed this was not delusional as counsel opposes in fact as the district court noted it's not a delusional conspiracy at all the his belief that everybody was out to get him was rooted in reality it was a skewed perception but it was the facts he gave because the facts were his first lawyer did meet with him and the government with a usa landru about plea negotiations he did not his first lawyer did not file motions that he wanted to file his  seek to dismiss there were plea negotiations in an attempt to see if mr porter would cooperate and he did want to discuss the media comments but it didn't happen and so you see there a disagreement with counsel a disagreement that has gone he doesn't like his attorneys he didn't want to listen to his attorneys because they weren't doing what he wanted that's not an inability it's not on able to come to talk with your attorneys it's not an able to assist it's just you're not a system and distrust of court appointed attorneys a certainly not uncommon sure this court's aware of that as we're both doctors in this case but bizarre volatile and seemingly irrational but hey or does not make someone incompetent and is the eighth circuit case the point of the game case the pro se filings interruptions generally reflect the defendant who disagrees with attorney conduct that doesn't make you incompetent was he stressed was he pressured speech yes and both the both judges at the hearing recognize that he was had been charged with three high profile cases one of them at one point carrying a possibility of a death penalty the judge certainly understood that but still that didn't make him incompetent and when he actually did go on rants when he made outbursts in the courtroom disturbing it was always related to testimony that was going on as judge feldman made a point of saying he seems to be understanding what the witnesses saying so it wasn't just a random outburst that had no control of anything it had something to do with this judge and as we pointed out in the brief and certainly the sixty two page opinion doesn't reflect that that the court considered him in the words but i think it's i don't think it's correct to look at it just like that this was a long process the court stated it was very well aware of the history this was a case going back to the first case indicted was twelve national on so the first case indicted in two thousand and twelve and this is two thousand and fifteen the court was very well aware of everything it had i believe affidavit that set the whole first thing in motion way back at the first one so while that's not in the sixty two page opinion i don't think that means the court wasn't aware of it and in any event as an aside you're also said there was no doubt that he was a difficult client that the judge just specifically put out in their opinion nobody doubted that he perceptor rated nobody doubted that he had a rapid speech nobody doubted that he was going to be hard to work with and that he had been hard to work with so that was really never in question so the fact that sixty two page does not mention mr kraft testimony on this forum is affidavit would have been nice to be in there maybe but i don't think it makes a difference and i don't think it undercuts here because these are two the two judges that have their varied experience trial judges have been through this type of hearings before and they knew the record in this case and i think it's safe to say that ultimately as we said no one denies he was a difficult client no one denies that at all neatly and much less the judges or either doctor but a difficult client is not incompetent just because he's difficult a difficult client is not incompetent just because it takes so much time with a lawyer to deal with them a difficult client is not this is not incompetent when he just wants to do something else and make defendants who intentionally chooses not to talk to his attorney th talk to some people not to talk about his case they'll talk about other things not to talk with this stuff but he'll talk with this doctor a defendant who intentionally does that cannot be incompetent because he is intentionally doing things here in this matter the court did with this court the district court did with this court had said it listened to the experts it read the reports it considered its own observations during the hearing it had a wealth of knowledge with which to make its decision and it found walter porter to be competent based on the record evidence in this case the record evidence that's before this court the record evidence that was before the court that was the correct decision it was not clearly on warranted it was not clearly arbitrary was a neuro psychiatry just now dr chanelle testified that he really didn't know you know what might account to prefer the kind of behaviors that one saw when trying to communicate with mr porter but he was not able to refer mr porter for neuro psychological evaluation because he didn't have the preliminary testing in order to do so that was not his area of expertise are was in fact able to administer screening and did in fact know that that neuro psychological evaluation needed to be done in order to reach a full diagnosis and yet the court denied defense the opportunity to do that if i had retained at trial an expert who recommended that further testing be done and i didn't do it i would be found to be in effect and i think you know one of the standards that we looked at with respect to awarding the defense the funding to to for experts is you know would you pursue that with a private client who would who could pack and of course you would have pursued it with a private client who could pay a private client wouldn't cooperate with the testing just like this client would cooperate well and i you  as part of the government the defense did not have trouble getting an evaluation although it was a little more persistent doctor a dark heart testified that there were times that mr porter wouldn't see him but he returned and there were mr porter would see him doctor a guard car again a neuro psychiatry testified that even if mr porter participated in partial nurse psychological testing there would still