petitioner brings before this court is what's not clearly set forth in the circuit is the process the district court needs to use to determine if a petitioner is mentally impaired the proposal that is being made here  and the issue raised in the petitioners briefs is to ask this court to establish a process that is based upon an extension of a stablished precedent in the circuit and establish reliable procedures units in the district court to determine mental competency of a criminal defendant in a before trial which clearly established also in this circuit is that mental competency is the equivalent of mental impairment and and that is set forth in the calderon calley case where the this court  established procedure that set forth in precedent that is the equivalent of mental impairment so question counsel if you're if mental competence is the same as mental impairment so you're talking about  the kinds of judgments that just the courts have to make about competence to stand trial it's because if they're mentally competent to stand trial the question is the procedures that we're asking this court to rely upon are set forth in eighteen u s c forty two forty one there's the questions about mental competency at the time that somebody commits a crime because you may have an insanity defense which is different from the question of mental competence at the time of trial which is a right to be able to aid in your in your own defense so what are we what is it that you're talking about it's the latter you're on the right we're asking that that the standard that is set forth is is the competence to assist in in trial and understand the legal processes are going through but that wouldn't really help you or your client if we made a judgment that your client was mentally competent to assist his counsel in its in his hadiths proceeding because you're actually looking backwards to a different time that's not the relevant time here the judgment about his mental competence to stand trial or to or to come before the district court is not the same as the mental competence at the time that he had the one year he had in the one year period the window in which he could file his his hideous claim i think the issues are similar your honor because the understand they may well be related but but it's not but it's not identical because you're actually looking for a particular time place in time not the present that's correct i'm not i'm not saying i don't think the issue before this court is whether  is competent to work with me or previous he'd be as counsel i think the issue is when he was during the appellate process and after the appellate process for that one year period was he co to understand the legal rights and understood in order to actually meet the deadline you're going to base this right on what you know based on the right to to have to use the the resources of the state to provide mental experts to determine his mental capacity during a past period and if we're going to tie it to the statute we're going to tie it to the fifth amendment the sixth amendment the right of the court i mean the right to have the appointment of experts at the is that the course inquiry yabbies that's what that's what it's going to require this is different from a right to counsel well as set forth in clearly established precedent in the united states supreme court this circuit in the seventh circuit that development of new facts in it at the hay vs level is allowed it's allowed now the question is are are we is the state obligated to pay for your or for your mental experts we that we don't have we have no no case in which that has been established in this circuit we have we have often recognized the evidence that the petitioners come forward with but your client was given multiple opportunities to come forward with some kind of medical evidence something and and failed to come forward almost anything other than a declaration from his attorney and a letter from his sister petitioners indigent your honor and he doesn't have the resources in which to hire the expert the mental expert when it create that's it and i understand i understand that i'm sympathetic now the question is what is his right grounded on his  not going to be extending our loft we adopt your proposal and you are very frank about that you're very candid with the court and i appreciate that this is an extension of our law what is it that we're good that we're grounding his right in first and foremost the court can look to the federal rules of evidence of that rule seven zero six but wolf seven o six does not provide authorization or require the government to come up with experts to help your client prove his case but it does set forth that is indigent civil litigant is entitled to an expert in the court can appoint an expert and that's exactly what the petitioner in this case is he's a civil it again who's indigent who's in need of an expert the federal rules of evidence real seven o six the pla as much in his checklist form so what do you think would be the standard or should this right that you have a sixth and it will to any indigent president in staying within the facts of this case when when you have an appellate attorney an experienced pilot hernia who is claiming during the appellate process and at the end of the public process when he when she is conferring with her client is clear that this is in that her twenty years of experience she has never she didn't identify an impairment she just said he didn't understand the legal process so in your view is a declaration from a lawyer that the petitioner didn't understand or the the defendant and understand the legal process with the app is sufficient it would be sufficient and that's why we're going back to the mental competency issues it would be sufficient for for a defense attorney or the government counsel to set forth  my understanding is there was never anything under oath or verified statement by your client that he was separated from any sort of mental impairment and you and i also understand from this record that you had both the magistrate judge and a district court judge looking at this in really quite sympathetic judges asking for your client to come far as something almost anything and  sufficient there was not only a statement or a declaration from counsel under penalty of perjury there was statements made by the consul general of the same bernadino counsel of mexico there were there  were i think pointing to the court there's hundreds of letters that are being sent out that there is another thing i want to ask you about he was he managed somehow to send out these letters i mean doesn't that evidence some kind of intellectual capability he was demanding help he wasn't demanding specific help in his letters there was no indication that he even understood the legal processes what as petition meant what that they were filing deadlines that there was that there was a severe miranda issue all he said was i need help and he's sending it to everyone and he son you know it was a letter once every other day again if you understood it there would be letters that set forth that he actually understood exactly what he was asking how to look it's not surprising that somebody would not understand behaviorist rules they're  very confusing they're plenty confusing even for lawyers so that's that's not a surprise that he but he's asking here for equitable tollway of filing deadlines established by congress and we have said that you have to come forward with some kind of evidence is there any evidence that he was that he was not competent or there was some question about his competence during his state proceedings either habeas or his initial trial there was or was there an insanity defense there was burden and that heating burden requires some things some sort of good faith allegation of serious mental impairment and the laws court laws he wrote mark points out some good examples of what that would entail medical records this defendant here could have easily obtained his prison medical file and submitted that if it provided any sort of help as to this idea that he suffered serious mental impairment all inmates in the california prison system upon entry at the various reception centers are screened for mental health and then beyond that whenever an inmate wants to be so not that he was necessarily mentally impaired and would a low i q be registered in some kind of prison medical records i think to the extent that a low i q might render a defendant unable to have to understand verbal commands or be unable to conform to the rules of the prison or be unable to that adjust to the stresses of institutional life i think to that extent that would be registered in a mental health screening and so ultimately it's not as though this defendant is without an uphill a t to obtain medical records that would reflect upon his his mental impairment if there is indeed anything of that nature so we have the keating burden and that was simply not met here and that's what the magistrate in the district court recognized at the outset and as you pointed out judge by be there were ample opportunities where the magistrate asked for it specifically and said practice experience she had not run into a person who is less able to understand the legal process is that enough to trigger further examination i don't i don't think so because what her representation was was a failure to a lack of legal sophistication but it did not indicate mental impairment serious mental impairment he he and that's that's kind of the distinction i think is that in the raspberry case said that it requires it's something more than just lack of legal sophistication or legal understanding it means something that's really there that really hinders a person he was able he demonstrated his ability to communicate with the hundreds of letters that  he sent out requesting help and indeed it wasn't as though these letters were incoherent there was actually a response the mexican consulate ultimately respond it's one of those letters and then provided assistance so it's not as though he's lacking in the until intellectual sophistication to be able to ask for help what he's lacking is the legal sophistication to recognize there is a process called hey vs corpus and that's the remedy that he's after and it's that that that is a big difference from the kind of mental impairment that precludes a person from understanding and that also and being able to file in a timely way had mr so say to contrast gone that heaviest is the mechanism given the fact that he so sent all of these letters it is probably extraordinarily likely that he would have sent a letter behaviors petition to the district court in along the way but he didn't understand that and that's really the critical issue and so because of that there's just simply no reason to overturn what the district court concluded in that there was a little put an equitable tone was unavailable in this case to the extent that  asking for the procedures of eighteen u s c forty two forty one to apply the supreme court has already foreclosed that the supreme court has said that that statute does not apply in federal yes proceedings it's because the reason for that is just the practicality of it would be extraordinarily burdensome if every indigent defendant which is almost every single hate dispositional all of a sudden entitled to having an expert weigh in on things i don't think that the federal rules of eviden already have to be send standard some showing required were right there would need to be some sort of showing i would agree with that but that showing certainly doesn't apply here i mean that there would have to be again bills be clark puts out the the process and that's that initial pleading burden and once that initial pleading burden hurdle is overcome then perhaps the appointment of experts and the rest of the process that bills require talks about would be triggered but not on this not on the respond the court was asking was are assigned a collaboration by the defendant or the petitioner as well as the attorney general asking for medical records presumption the assumption in those requests though is that there's a software innes by someone who's mentally ill that they are mentally ill and they're willing to do so but what we do have in this case is a verified petition that was filed signed by the defendant in the which these claims of mental illness and mental impairment were made and i think that is sufficient based upon the request of counsel what what is problematic for the court for the petitioner here is that the district court i indicating and then in the respond is indicating that medical records are needed they're not allowing this petition or the opportunity to develop the factual record and that's all one of the questions were given it was given many opportunities to do this both  magistrate and the district court issued order after order saying provide us with the letters provide us with provide us with something but and again they did provide a declaration of a they did provide declarations from the consul general there was letters from his sister indicating that he wasn't he didn't have no proficiency in english barely any understanding of spanish well his own debt to the lack of proficiency in spanish seems to be belied by the record when he writes hundreds of letters i mean that i was very surprised that the somebody was pushing that when we also know that he was writing as you said writing letters every other day that doesn't sound like a lack of proficiency and they were responded to an excellent mexican consulate came forward and offered offered its assistance so obviously they understood what he said again that they understood what he said but i'm not saying i don't think it's i don't think there's an expectation that he's setting forth elaborate prose in these in these letters that are you know showing you know strong mental and abilities i  is i think that the best thing for this court to do is to remand this case to develop develop this record and allow allow him the opportunity to present an expert to show them that their medical records  develop that the case which is clearly allowed at an expert at the government's expense at the court's expense of the government's expense yes and i think that's that's set forth generally  that the petitioner should be have allowed the resources develop this fact that this record as a mental impairment aside from the seventh circuit decision is are you aware of any other court that has ever ordered  development of a record in a case of that quibble calling like this it wasn't it was almost the presumption in the call the wrong cali out of the out of this court that the district court acted properly by appointing a doctor to do to determine whether the petitioner was mentally competent so these procedures have been undertaken by district courts in affirmed by this court in doing so it just hasn't been established in the law that says this is appropriate to do so and i think that's why the district court in this case probably didn't appoint an expert and didn't think that we've set forth under the federal rules of evidence even under the effective assistance of counsel on of the sixth