argument of the day is here and our versus beer history karen powers claims that both the trial court and trial counsel failed to properly respond and act in the face of sufficient in addition of incompetence is both a reasonable application of clearly established federal law under twenty two fifty four d one you and an unreasonable determination of the facts in light of the evidence misrule and with that in mind asking us to make a determination in light of the record are you talking about the appendix your honor yeah and that's something that i'm glad that you raised under the rules of federal procedure appellate procedure and under the local wills in haiti cases the court does not require counsel to provide an appendix with the transcripts because the entire record is transmitted to the court i used to do that regularly in the last couple of cases i've been following the rules  the last time i'll do it i did it in a couple of other cases and i think the lesson learned here is that the record is with the court we're no longer all in the same building we're dealing with c m s yeah i think it would have been available but i think moving forward in the future i would include those transcripts i do think they're helpful although i do think that both of the parties and their briefs identified accurately portions of the transcript for the court but at the same time seeing the transcript and reading it in its order and getting the flow is something that i think is necessary for resolution of the claims so i apologize for that in advance and i certainly in the future i won't follow the rules and will follow my better judgment and s that said i think that the record here and i think one of the points that you're honest question brings up immediately is that the district court in this case applied the wrong to standard it applied only twenty to fifty four warren which is the presumption of correctness and bypassed completely twenty two fifty four d one in d two as this court has held in lambert versus blackwell the twenty two fifty four  well determination of facts in light of the evidence so my initial argument to the court would be as a matter of law as required the district quote failed to apply the correct standard in this case first of all your knowledge  with with a part of what you've said in lambert the quote right is very clear in distinguishing between two site types of situations one is where the factual matter at issue is a subsidiary factual finding  clearly applied to subsidiary factual findings and i think that's clear from lambert it also distinguished where the factual findings were not subsidiary as they are in this case the ultimate determination of fact and that's a situation where de wine and act really due to the determination the facts would apply the other distinction that the court made in lambert is when looking at the i passed and that's and looking at the record i we dealing with claims they're based soley on the state court record or are we dealing with claims that were further developed in federal court we don't know that there was no hearing in federal court we have no additional facts that were going on we're right relying solely on the state court record and lambert teaches that where you're dealing with an ultimate factual to the district courts of that the district court can properly analyze could properly analyze the claims and not apply the only thing that the district court did it said this is a factual finding you want to apply i have to p supports the factual findings of the district of the state court and more than that it has to do with whether clearly established federal law required on reasonably required a different result and those are two very important questions that this doctors who examined him at the time and gave reports i think maybe they were available i'm going to honor there were three doctors that examined him there was one that gave a report and i do know it's a matter of fact that all three of them are alive well and available with that  determination under the two that it's not an unreasonable application of federal law i believe that you kind of so i believe that you tried that in mind what is unreasonable about the factual determination mean even go so far as to say that it wasn't in play but i understand your honour's characterization of it i simplicity that's where all things went wrong and one of the things that both of the state courts relied on that i say is unreasonable is out on july twenty second following them attempted suicide the court said choir of counsel and isn't view of counsel as to the competence of his client told me as well reaching ultimately a competency term absolutely and with some evidence but it's not all evidence in the most case the most critical fact is the counsel statements were equivocal and also were based on he was relaying statements from mr karem our they weren't not prior to the suicide attempt only one doctor i said prior to the attempted suicide only one doctor a psychologist dr albert scott had completed his evaluation of mr karem our only one alright and what was his hour at the jail and was questioned about that he advised quote of what had happened he was questioned about that on the record the court advice to him to go back and speak with mr karen bauer and come back one point that i would like to read he said  that he originally was disoriented agitated wasn't sure if you could continue when he came back he said that he felt that mr karen bauer was better and that he mr karen ballard told him that he thought just finish the sentence because drew i think they clearly established federal law in this case judge first the supreme court of the united states talks about a suicide attempt that was contemporaneous with trial and it says that such an attempt suggest the attorney who's can see that well this is an issue obviously and doesn't make a motion for a hearing now usually if somebody doesn't even ask for something you reason why he's in effect but the point of the matter is though if if in fact there was no basis you're saying that he should have asked for failure to act under where there was reason to doubt competency this court granted a certificate of appeal ability only on the latter issue and so under dressed up due process requires and due process might be incompetent and that's where we are with the issues that were granted in the certificate and the only issue of prejudice there is no wish or prejudice when it comes to the issue with the trial court's actions prejudice only comes into play under strickland when we're talking about the sixth amendment claim in our case the trial counsel should have requested a hearing and prejudices shown for that claim if trial counsel had requested is there a reasonable probability that a hearing would have been granted the issue in this case is not whether mr  protects you if you're tried when you're likely in competence case on all fours with drew i don't believe it's on all fours that there are factual distinctions but again as i pointed out in my brief the the fact that it can be distinguished is irrelevant here because i have not challenge the state court determination as being contrary to fact clearly established federal law i have challenge that has an unreasonable application and little teary old indistinguishability is only relevant when you're talking about contrary to question of twenty two analyses the standards are fully set forth in the briefs is a different question i can see that the question i raised is it easier for one for me to prevail on i didn't challenge of this contrary to because i have not been able to under supreme court raw identify a supreme court case is indistinguishable i thank you very much compare those facts what with what's in the record i invite the court to do so but you know i'm told that i somehow misstated the record when i said counsel reported the camera was upset and said that he did not know if he could go through with trial however counsel was unaware of any basis for that statement my statement specifically was or defense counsel statement specifically was he basically told me that he's upset he doesn't know if he can go forward with this i don't know any basis for why he's saying that now when the sisters at st madeleine's taught me how to read i think i got my reading comprehension and those seem the same to me so i would suggest to the court that every statement that i made that is challenged in this determination it is a reasonable application of the facts it is a reasonable application of clearly established law whether or not mister campbell was actually incompetent is a factor i suppose whether or not there's actually any evidence that he was incompetent and there was not all of the doctors who examined him made no such determination fact dr scott specifically determined that he was competent the way he that he termed it was he's obviously able to consult and participate in stuff that was but one of the tests in any of the language of our own case taylor versus  might that not reasonably to be taken is some indication of incompetence it could be taken as an indication of incompetence however by itself it's not sufficient the court looks at troop and its progeny that that's made clear you look at all of the circumstances and the circumstances here are this gentleman made what was determined to be a suicide attempt and was usually referred to as such  however as the spirit court pointed out there was some question as to the authenticity of the attempt even assuming that it is one defense counsel spoke to him over that weekend when it occurred told the court well he was very upset i was having a hard time understanding him but after a while he calmed down and he seemed the same as before in other words he seemed the same as when he was determined to be a cop and by dr scott or her what what's so lacking in the facts of this case that makes this case factually different well for one thing in drove defense counsel moved to have the defendant examined and kept repeating to the court this guy's out of his mind that's one thing that the suicide attempt in the case was considerably more serious as well shot himself so that there were many more there were also more serious  psychological problems that part of the problem here was that the details were not presented to the court at the time of the suicide attempt who didn't really hear the details of mr campbell's mental history until later but even even then he was depressed or some other relatively minor disorders but there was nothing that would indicate that he was completely incompetent to stand trial so that's the basic distinction the level of information that was before the trial court here simply does not meet what was before the court again examining all these facts defense counsel's representation that mr karam hour was competent at least to his perception and i would point out that after the suicide attempt  specifically asked about that and that's in the transcript of july twenty second of page four he specifically asked and its response was no i believe that he's competent at this point so that defense counsel made an affirmative representation to the contrary as opposed to the other cases where defense counsel was actually trying to argue that he is incompetent and we need to have him examined he was at that point asking on behalf of mr carabao or for another no reason why the truck wouldn't go forward that's correct and that's the foundation of our argument here today your honor that based on those representation the court had no reason to think that and in fact so your argument has to be the reverse that well no matter what it turned the corner and you know it's a difficult case obviously on the facts ye that the court should care what you say or didn't say we're going to have a hearing you're whether you like it and not only is that the issue before the court but the state courts decided that was ok that the judge didn't do that and the question is whether or not it's reasonable for them to have made that determination what of the fact that counsel representing mr karrenbauer had had a professional relationship with him of i believe about eleven months duration from shortly after the offense was committed to the time of trial and the incident giving rise to these claims i would say that that supports our position that he as we pointed out in the wake of this court determined that trial coun opinion is extremely important when you talk about a determination whether or not there's this indicia of incompetence and this attorney would have known this client very well obviously when when there's a suicide attempt this is the person who contacts them and basically talking down how much time had the common pleas court judge had to actually observe care and the hour in court and interacting with his attorney and with the proceedings themselves i did not check the record to know how how far along in the jury selection ward year process individual were due process had the proceedings hearing with respect to the statements made by mr karan that are so there had been prior proceedings as well that i cannot give the court like a firm number of days that mr kerik been in court but certainly the judge was just mccracken had seen him a substantial amount of time is that that person explained look life in prison i mean it's like death anyhow by a thousand cuts i'd rather be dead you know i could see what you think and the argument that we usually see your choose to get it over with as well i can never find myself in that position but i think i tend to agree with you i don't know that that decision would necessarily be an irrational one but i think it's usually used that way i the person you have related to the issue usually this could be participating in the defense and so it's difficult to say that because he makes that value judgment lot of people  just a few points from the questioning  greenberg was just saying i know i said this before but i got to say it one more time the supreme court of the united states characterized a pretrial suicide attempt as suggesting a rather substantial degree of mental instability so whatever this court may or individuals on this court may feel about you know somebody has choices life and death choices the supreme court has already told us for purposes of legal analysis what what that and a second point is that the united states supreme court has also told us that when we were evaluating claims under twenty two fifty four de wine and the two that reviewing courts reviewing federal courts are obliged to stick with what the state quite sad you have to analyze the actual analysis of the state court not some of the things that mr barker has put in his brief about whether the suicide attempt was real or not but this court's duty is to look at what the state quite dead and determine whether it's reasonable if you overheard in a room alone yelling at himself and i want to just point out one more time that on july fifteenth prior to the suicide attempt in this case the common pleas court judge addressing mr kerry and our sad i'm concerned about your understanding about what's going on we don't have a record for what led the court to say that but judge smith you asked about the contact between the defendant and how much of an opportunity the trial court had had to observe something was observed that  the trial court on july fifteenth prior to the attempt to make the statement of course by proceeding one has logically so that whatever that concern was was  problem in this case is that the suicide attempt as a break in the chain of the prior events was not given the focus that the united states supreme court says it should have been this is something that mental health professionals need to be involved in this is not something that trial