please the court mr la hood raises two related issues that must nevertheless be just dyed it on distinct sets of evidence both claims though are subject to the highly deferential at best standard of review when the are properly parsed and then viewed there at both when it becomes clear that the state courts reasonably denied relief on both claims the lower federal court failed to take this approach and its decision should be reversed given i would like to turn first to his due process claim a due process claim like the one mr la hood alleges underpaid versus robinson must be considered only on evidence that was before the trial court the supreme court has not established a standard for when a trial court must do a spontaneous raise the issue of a defendant's legal competency in fact the supreme court has only found such a diet such a due process violation in two distinguishable cases so as you here's your first argument that there's no without it binding supreme court case there's no the other side can't win without a binding supreme court case on this context given that the state appellate court has already found that there wasn't what texas requires which is a bona fide doubt as to the defendant's legal conduct the under the facts of this case and existing supreme court precedent so long as that decision was reasonable as any reasonable jurist could agree with the state court's decision then under a a relief is not warranted ok is it that there was an ground that they followed state law is a separate reason that you went on that that the state this one and neither case establishes a clear standard for when the trial court must raise this issue yet as a matter of state law the state courts have already determined that the trial court proceeded properly unless that's unreasonable that shouldn't be disrupted on federal habeas review there are three main ways in which the state appellate court properly analyzed fifth case which the lower federal court failed to do the first it isn't it isn't an important note is that the only evidence of incompetency in this case came from mr lloyd himself and that's very different from the cases that the supreme court has considered there was no history of irrational behavior the new evidence of history to russia we havior from any witness  no expert medical opinion before the trial court suggesting that mr la hood needed further thank yeah true evaluation or treatment around the time of trial there was no promise in disputed that he was taking medication only evidence of that came from mr le hood himself but that there was certainly evidence that mr le hood suffered from mental illness and that he was being treated for mental illness before the trial court evidence which came from mr la hood of course suffering from mental illness even improperly medicated it is not a person a evidence of legal incompetency legal incompetency revolves around a defendant's ability to understand the proceedings to assist in his defense and to communicate with his attorney of course there are a number of mentally ill criminal defendants who are still legally competent to stand trial secondly in this case something that the appellate court seemed to consider that the lower federal court failed to consider is that the trial court was there a exclusively and had the benefit of witnessing mr la hood's behavior and his demeanor throughout the duration of trial is something that the supreme court pointed indications are mr la hood that he was absolutely competent and so third we the state court also considered any evidence of incompetency in context for example perhaps the strongest indication i'm sorry i think that interplay between mr la hood's ineffective assistance claim and the trial court's failure to raise the issue it is it is with respect to the fact that trial counsel didn't raise the issue of mr lewis competency before the trial court that certainly weakens his due process claim in either case that the supreme court has considered has that been the case in both of those cases trial counsel did in some way raise the issue before the panto raised to proceed and conducted a hearing well importantly the evidence that was before the trial court is different than the evidence that was before trial counsel and different than the evidence that was put forth on state he is review the make of the medical records from jail the expert opinions none of those things were before the trial court during the time of trial again all that the trial court had to go on at the time of trial w lowe hood's own in court behavior and his testimony that he suffered from mental illness and had missed medication the trial court heard mr lloyd deliver a link the detailed fact based direct examination testimony that was favorable to his defense that the state court has already pointed out during which he delivered a competing theory of events which if the jury had accepted would have led to a not guilty verdict it was only on cross examination when frustrated that mr low hood began suggesting that he needed to that he hadn't been receiving his medication and was having difficulty understanding the prosecutor's question the  there she witnessed his demeanor his behavior both under rect examination on cross examination and when trial resumed the next day in the trial court alone was able to based upon that determined that she didn't have a bonafide doubt as to his legal competency that is his ability to ability to understand the proceedings and to to assist in his defense and communicate with his attorney because he was doing that he was assisting with are outbursts that occurred during trial and cross examination testimony for the competent people can make out bars because they're mad and frustrated is that what the court of appeals was persuaded yes the state court has already found that they were outbursts they were perhaps inappropriate and not in mr low hood's best interest but they were absolutely logical rational responses to what was going on at trial it indicative if anything of a criminal defend facing serious charges and frustrated with the trajectory of his trial unfortunately we sometimes have cases when it's very sad where people think that they're dealing with aliens or that they're hearing voices and all of that sort of mini concert that they're not in the right place that they're in was there any sort of testimony or outburst that suggested that he was not in the court room when he was in an alien or that you know some kind of thing that or that he was hearing voices or something that were invading his mom you know that that you know those kind of cases those are the things that i think the supreme court has turned to truly bizarre behavior or a history of irrational behavior and no none of that was present and mr la hood's case he the evidence before the trial court was limited to his testimony that he suffered from mental illness that he wasn't receiving medication we assume the trial court made by virtue of the state court having already found that it was reasonable for the state appellate court that it was reasonable for the trial court not to have raised the issue and under state law there has to be a bonafide doubt as to legal competency for the trial court to be required to raise the issue and the supreme court has already established that requiring a bona fide doubt as texas does is constitutionally adequate now do we have to assume the other and the ineffectiveness of counsel claim that the prong one is satisfied but you think they went on their our argument is that in this case it's unnecessary to reconsider deficiency although the state court probability that he would have been found legally incompetent to stand trial and importantly and in this case the state court has already determined that he failed to do so so unless no reasonable jurist could agree with the state courts determination precludes relief most importantly in this case trial counsel provided an affidavit she unequivocal he states that mr la hood was able to communicate with her to assist in his defense and to understand the proceedings affidavit which again the state court found credible and the important relevant portions of that affidavit are where counsel categorically state that mr la hood could communicate with her throughout the duration of trial could assist in his defense put forth suggestions of a series of defense that he would like to assert all mr lloyd has provided are medical records which show that he was being treated for mental illness and missed doses of certain medications during trial and expert reports written post conviction years later we can agree also i know it's not the law but see if you can agree with me that if if the defendant says that i'm taking medication for mental illness i mean that's that's a little bit more than just outbursts in a court room and somebody acting out or trying to appear to have some mental problem he says i'm on medication for  mildew and nobody disputes that and then he says i'm not getting my medication they won't give it to me now i know that apparently on the second day of the trial when he said i haven't had my medication the judge declared a recess but can we agreed it would just be prudent probably take a few days i don't i don't know how long it takes to get a medical exam done but he says this isn't somebody who has no history of mental illness he has that wouldn't it just be prudent for the trial judge to say let's just take a recess get an examination court to inquire into his competency but if you also believe that perhaps on this record the trial court didn't meet didn't have a bona fide doubt then under at all he's still not entitled to really from his process claim so long as any reasonable in order to perfectly proceed i think to the due process issue but the first step back and address the ineffective assistance there's no question about the efficient performance of the trial counsel that's already been acknowledged by the state court of criminal appeals as well as a federal district court the question comes down to whether there was any type of prejudice which is based on whether there was a reasonable probability that mr love hood had the matter been raised and considered would have been found incompetent and as the federal district court noted detailed there is a laundry list of evidence that was known to the trial attorney and she chose to disregard that rather casting her own view that he was a massage honest that he was using antics and trying to play psychologist when in fact she had no business doing so even as attorneys we think were quite intelligent but sometimes we step outside our bailiwick and in this case she failed to conduct the necessary inquiries so there's no strategic considerations here she just failed to conduct the proper investigation to inform her as to what the next step would be but even apart from that from the evidence that she did have that he was taking those medications as the court observed and that she knew those are the type of medications it had been prescribed to people who had been found incompetent but perhaps were recovering or becoming competent over the administration of the medication so with that idea in mind the fact that he was not allowing her to help him prepare for the trial and then looking at even the trial conduct where he was surprised about where the stages were that the trial was wrapping up so quick he didn't know that he was even going to be in a situation of having to testify at that point and said that he felt coerced and there's clear confusion on the record he had not had an was not able to rationally consult with his attorney and understand the course of the proceedings it's clear from a review  transcript and the court of appeals that that information is well hard to turn ipsos that i'm sorry ron you said that it's clear from a review of the transcript that he couldn't rationally consult with his attorney what is where does it where's that that during the a c on the twenty six was a jury selection so the twenty seventh when the state was presenting its case at about four o'clock they were wrapping up and the hood was called upon of whether he wanted to testify and he was wholly surprised that there were no additional defense witnesses and he was going to put in a position where he was going to be the only witness and he was not prepared he was confused he expressed that he was coerced at that point but ultimately after being in that line like the pressure agreed that he would go ahead and testify and began to testify at the end of the day before the proceedings were journey for the day but isn't that actually rational all of that if you don't know that you're going to be testifying and the novice a new and you think there are other witnesses and then you're the only witness i don't know what's irrational about any of that at it seems that that would be rational to if you are the defendant and they are your counsel isn't prepared to do what you put on your case that all of those don't seem irrational do that well and then again i'm a psychiatrist i'm not a mental health professional i know that we have a three eminently qualified affidavits from two forensic mental health professionals a psychiatrist as well as a psychologist psychiatrist was head of the manager clinic in houston and he indicated that that was a rational process given that mr hood was going to be subject to cross examination which he was not prepared for as well as that he had already a criminal history that was going to be introduced and would be damaging at his trial but so did the head of the manager clinic said that his response to being put in the spot that he'd have to an air that was in a rational reaction that that did not that was one of many factors indicating the at best intermittent competency of mr hood over the course of the trial and his d compensation that was at the beginning of the trial so as he continues not to receive his medications from the jail medical staff he is d compensating over that period of time already evolved to the point where he continually is complaining to the court on the record that he's not receiving his medications that he's having difficulty understanding the proceedings how many times did he complain to the court about the medication a number of times your honor i haven't  he also indicated that he was seeing things he was uncomfortable and as i said difficulty in understanding the questions to you do you dispute that he actually did very well on direct examination in terms of making his points and that sort of thing you know your honor and i think what the court is doing is following kind of the reasoning of perhaps the lower courts which we're supposed to do deference well and i'm not talking about the federal district court yes and yes that's correct unless the there was an unreasonable application of the facts in which case and that wouldn't be the situation because if they're not determining the facts correctly and it's clear and convincing evidence that it's otherwise you'd have to show clear and convincing evidence that their determination of the facts was wrong or it or you'd  require them to do that i'm sorry i did i don't know did judge her weight really apply it to deference that i mean i'd that's and we don't need to resolve whether to to it really applied it but you're saying no process right and from counsel standpoint a failure for her to raise that issue before the trial court so that he would have due process rights accorded to him and it's clear under pate and dro that that was in the ceci where there is objective evidence before the court that gives rise to the bonafide doubt which was the standard the time in two thousand and four in april when this trial occurred and with respect to that we have to remember that the standard of establishing bonafied doubt under mcdaniel versus state is whether the there was  recent severe mental illness moderate retardation or truly bizarre acts here it's undisputed that we have received severe mental illness but that's only the beginning so stepping back again to the question of whether there was a reasonable probability that mr hood would have been found incompetent the problem at the lower court at the court of criminal appeals is that they disregarded in whole the very detailed compelling medical testimony which analyzed not only the record that the court is referring to but as well as the the supporting medical records which showed that in fact what he was saying was true he was not receiving this medication and it had not been adjusted properly and that from reviewing the medical records saw that he had a history of prior suicide attempts institutionalization prior hallucinations and had a very pathetic history of severe mental illness and it continued throughout this process infortunate thing is the people who the state who should have provided him with the needed medications to maintain his competency failed to do so and that's been objectively established by the medical records so there's if if the reader of the record did not agree with the district court that that that that this court of appeals disregarded those things but found that they were not conclusive in light of other evidence does that make a difference no because you could you could say i've got this pool of evidence and i think this is more important than that and based upon that i find there's no prejudice in which is what a reader could say looking at the court of appeals decision not that they ignored the middle but that they found that it wasn't didn't put it over the top and they believe this other evidence was more important to the situation well of review of the court of criminal appeals decision pays lip service that they considered this they did we yes now we have to take them at their wor that mr hood was according to one expert probably incompetent going to another one definitely incompetent given that type of certainty medical certainty and remember in texas under chapter forty six b the procedure for raising the issues under forty six point zero zero four but once the and the court makes an informal inquiry it's referred to an expert for evaluation under forty six b point zero two four of the court of criminal procedure and there's a whole laundry list of things for that expert to consider and dr serrano considered those and presented those to the court in his affidavits along with a detailed recitation of the objective medical evidence now it's apple east position that not considering that a substantive part of the consideration for the trial court would be in derogation of their responsibility as jurors because it was compelling evidence and l it's clear that a defendant in addition not being has to be competent in order to be tried and convicted but that it cannot be intermittent competence such that if a person is competent throughout portions of their trial and incompetent in others that's insufficient under our constitution and so it becomes clear i think from the quality and the quantity of the evidence that was before the court of criminal  that they made an unreasonable application of law in this case because looking merely at the demeanor and some of the responses again paid addresses that that those are to be considered perhaps in the ultimate disposition of whether a person is competent or not competent but it does not dispose of the necessity for the procedural requirement in order to effectuate the constitutional protection of due process and you help me because to me what you're saying sounds like you think that they weighed the evidence wrong and if that's what the case is i think that we have to do that at the deference we don't get to say will you wait it wrong they get to weigh it so help me out and understand why in a deference doesn't preclude that sort of claim well according to the federal district court such deference is not required in that if there is a ample showing of clear and convincing evidence that overcomes the rebuttable presumption that those facts were determined properly that disposes of the presumption because that has been overcome so perhaps the presumption is integrated within that consideration but certainly whether there is presumption or no presumption then it is overcome under twenty two fifty fo by clear and convincing evidence in fact now that i think about it i think there is a statement in that there that requires a determination that the evidence which overcomes the presumption is cleary convince direct your own and then in that they incorrectly determined that there was clear and convincing evidence now that they relied mostly on the demeanor of trial excerpts to selectively show that at different points in the trial he mr hood was giving answers that perhaps could be considered logical or explanatory of his position so i misspoke that what happened then is that it was there if the presumption of it different yes the only can overcome with clear and convincing evidence around certain made a determination that the evidence was not clear and you know that they have well they made the yes they made that are terminations although they didn't use those terms because they weren't analyzing under at but every light on the demeanor of some trial excerpts as well as the affidavits of trial counsel who of course we all understand is not disinterested in this case and had actually in her affidavits indicated that she was unaware that mr livid had previously attempted suicide yet in her closing argument referenced that he had prior suicide attempts so in addition the court of criminal appeals in remanding the case or directing an order to the district court ordered  his trial counsel to provide letters that she supposedly had indicating that he was expressing thoughts clearly and kind of interacting her but when she was called upon to produce that he had mysteriously disappeared so this is the person upon which the court of criminal appeals is relying in great part to make its decision but not giving certainly any kind of ample credence to these very extensive and very specific affidavits that detail not only mr la hood's history as established by the jail medical records because apparently there was some history there but also about the medication aspect what the impact would be and then looking at the transcripts how the impact of that and his particular  severe mental illness it was common where there would be episodic fluctuations between competency and incompetency and in fact in this court in a number of years ago butchie on  was a case which is very similar to this one and in that case the fifth circuit here made reference to that the fact that if there is episodic person is competent is whether they have a rational of an ability to rationally consult with counsel of the system in his defense and it's clear from the record that at different points he didn't even know what was going on that he didn't know there was going to be any defense that he was going to be called upon at that point and there wasn't to be this individual he referred to as gerald sched there was going to be any type of expert testimony on an irrational thing that's the court well know that a case in  is well the definition of apologize short of the definition of competency is what i'm talking about i'm showing illustrations that would reflect there's two components of that so one of them to is a sufficient present ability to it she didn't produce these other let why shouldn't we run it by clear and convincing evidence first with regard to the affidavits it's important to remember that these are written on state t v as review these experts have never examined m let alone at the time of trial the only evidence that we have regarding mr la hood's behavior and his demeanor at the time of trial coming i guess that that's part of my problem now is let's go back to the question i asked earlier and if all these things a book based on somebody now trying to determine whether or not he was competent on a date certain at some point in the past why not just take a recess to have an examination or see if he's getting his medication look at i mean it just seems like that's progress i understand i agree with you it's very difficult now for somebody to take a backward look and say based on his behavior in court on this day determining that he was or was not the whatever they pinion is it's difficult to make them on what obviously are snapshots of what went on in a particular day and i go in as a judge your eyes question but it is just very troubling to me that  all this is going on and again we're not talking about somebody who did not have a history of mental illness but just seemed to be acting out to try to appear to be mentally ill not to be convicted he had a history he's taking medication all  experts could find that professionally given that they'd never examined mr lloyd or ever let alone as i said at the time of trial i think they at most sermonize retrospectively that in reviewing his medical records in the trial transcript he might have been incompetent and mostly what the experts are saying is that talk ounces should have further investigated which is some is mental health history specifically which is something that the state court accounted for its deficiency fighting again that  ely correct findings that mr lowe hood during trial disclosed pertinent facts and events understood the adversary nature of the proceeding and put on a favorable defensive theory all mr law has provided our medical records well of course in in the they don't have a second of course in this case the state court already found that what mr la hood has presented isn't enough and it would be very difficult in light of trial counsel's affidavit it's always going to be very difficult to retrospectively prove incompetency when your attorney is getting directly at the crux of legal competency in saying i was able to communicate with my client he was understanding his proceedings begin i posit that there are other things  could have presented testimony from other witnesses who were there at the time of trial who could establish that he was unable to communicate unable to assist in his defense his medical records show that he was mentally ill and not receiving medication but they don't show that he was unresponsive catatonic things that might morcombe much more conclusively established that he was legally incompetent did there is this way you know have to be catatonic purposes are certainly but but mental illness alone even unmedicated is certainly not enough it's certainly not per se evidence of legal incompetence given that that's all his medical records establish in combination with trial counsel's affidavit unequivocally stating that he was able to communicate with her and the state courts existing finding that that is not enough to