court i know the court's review the procedural history of the excerpt of the record so i'll move and on and concentrate my argument on why this case must be returned to the district court and that is because magistrate judge here erred by failing to grant mr pleasure the required evidentiary hearing because his pleadings in that court his prostate pleadings in that court did demonstrate that the facts that he those presented by the government to f b i agents in particular who talked about the facts and circumstances of that questioning despite the fact that the task of the legal test focus on how a reasonable man in the suspects position would have understood his situation in regard to the police mr pleasure was not caught mr fletcher then alleged in his twenty two fifty present at the time the f b i arrived at the house and in fact who were also questioned in here is pleadings to the district court mr pleasure included affidavits from his family members his pleadings the acid it submitted by his family members and the testimony by the f b i agents the magistrate had before him two conflicting versions of what happened if mr pleasures version of the events is true then the trial court did it here by admitting mr pleasure statements and it was deficient performance which statement the statement well actually both to finally before any miranda warning a dispute as to whether or not he was in custody let's put the proposition was infested and so that statement is ruled out does that automatically mean everything that comes after that after he has been properly advised of his rights you automatically are untouchable because it's been tainted by the first one well i've been practicing for eighteen years or so i know nothing's automatic however under the reasoning of oregon versus was prejudicial to the ultimate question for the jury because of course mr potter and the government clearly agrees with this mr punchers argument at trial was yes i wrote the letter so i didn't have the requisite intent to explore which case the second issue i'm not going to spend a lot of time on this trip pleasure did also argue to the magistrate judge that his attorney failed to appreciate that this metal intent was an element of the crime and thus did not present evidence regarding his mental state he does present did present affidavits to the magistrate judge which by his father who does have some medical background that he suffers from a mental  as a part of the twenty two fifty five motion now in this case the district court assume the truth the defendants have cited evidence and still found the claimed errors were not errors at all and that there was no prejudice to the defendant that finding was that is where the court is trying to decide to the trial court correctly deny a request for an evidentiary hearing it's important to remember that the defendant at that stage of the game has an obligation to present some sort of proffer of evidence to the court and to you at this stage we look at it and say what was that proper what was the district court but the district court have before it when it was required to make its decision on this evidentiary hearing now even considering the outside evidence  showed what he did show in support of that argument in the show that it was deficient he offered to the district court only the father's affidavit that he had had a conversation karen lee thank who is preventions are described only as the director of the lake county mental health department we have no indication whether caroline it's a trained mental health professional psychologist psychologist or what are expert credentials are but according to the father's affidavit that diminished capacity was not a defense to the crime of story and the crime here course included not only the threatening letters to bill gates but the intent to extort the five million dollars from him and that was should the defense attorney have followed up on that i think that's a matter of conjecture maybe yes maybe no under the circumstances but the issue here really before the court in the standard on ineffective assistance of counsel claim is not whether the evidentiary hearing but i think that it is important to conclude that because dr weiss had already examined the defendant because the defendant had mentioned that there were two other people who had examined him but never proffered anything to the court that he was in custody and that the statements were coerced on the question of whether he was in custody of course the test is whether an ordinary reasonable innocent person would have felt that he was not free to go and i know the court is where the facts but i want to cover other defendants and the agents if i sing of his miranda warnings ten minutes after he he verbally confessed and he was not actually placed under arrest until even after the search was completed there was first the oral statement and the written yes but it's important remember here too that the defendant was in a private meeting as house with two f b i agents he had no way of knowing with the family was thinking and it's important he's facing the same a different agency with the same phenomenon of agents arriving examination and he said i cooperated because i thought it was the right thing to do yes and i don't see how my district court faced with that or stepping one  this counsel was in any way deficient that he was not prejudiced the defendant was not prejudiced by his performance thank agents questions these affidavits to not there directly on the question of whether petitioner himself felt free to leave intact the record does contain the petitioners statements regarding that very issue  explain what the agents confronted him with in terms of evidence and that's that the excerpt has a record at page eight on the air here was the very fact that the trial of the trial counsel di call mr pleasure at that pretrial suppression hearing because the very issue there was how mr pleasure proceed those facts and so on that basis not only was counsel's performance deficient there is a raise a question about whether he felt he was in custody or not was there some concern based on the other members of his family but then you get to the second half of that and or else that in terms of whether the second statement is inherently has to excluded because it's not voluntary and you just heard the q and a offered by mr right he with regard to what mr pleasure said about that can we make a determination that the second statement was involuntary needs to be excluded i don't see i don't think so for