simon this is a troubling case with the sad resolution there were numerous red flags in the case concerning mr simon's mental health in the court and his attorney both acknowledged it and danced around it and then at the end of the day nobody declared a doubt about his competency in the in the case proceeded and then inexplicably he gets convicted and they go to sentencing and then his trial attorney is seeking funds for a mental health expert a little too late and that just poses a lot of questions about what the judge and the attorney were thinking but there was never a question in anybody's mind but that mr simon had a mental illness and having a mental illness does not translate necessarily into a lack of competence and i don't see seeking the evaluation at sentencing necessarily as being a doubt as to his competence as much as perhaps being sought for purposes of mitigation or for purposes of proper placement for mental health treatment during his period of incarceration there was nothing in the record where the attorney questioned his competence to stand trial even though he obviously suffered from a mental illness and the trial judge interacted with him on several occasions where the trial judge didn't sense a lack of competence even though he might have thought that he was exercising port judgment will i generally agree with your statement and i do acknowledge that th record is lacking any concrete evidence of his incompetence but you have several red flags that suggest maybe it was and it's hard to tell from a cold record how somebody is actually behaving and operating but you have the judge who first raises the issue of department ninety five and so something that she was seen in the court had to have given her a red flag and then she questions his thinking because he's turning down the search for your plea offer when the prosecutor's perp perhaps coming in with a third strike in the possibility of twenty five years to life so so that is an indicator that she thinks he's maybe not thinking rationally sheaf she's the judge pushes numerous occasions to have the family talk with him hoping that maybe they can talk some sense into him into taking the plea offer and then there's also this issue about the the jail starting him on lithium the weekend that the trial is going to begin and again the record the cold record doesn't  doesn't really inform us but jails don't willy nilly prescribe lithium there had to be have been something that was that was happening that gave them a venison when it came to him but but there was he had a long established history of of a mental illness and i think one of the comments was he was restarted on lithium as if he probably had been on it before or some type of medication and  the fact that he may have been on reasonable and making poor judgments as in not taking a beneficial plea offer doesn't mean he's not competent doesn't mean he doesn't understand and able to assist in his defense it just means that his judgment is bad well but but really that's an issue for a mental health professional to assess whether the degree of that and reasonable ness is related to a competency issue or not but the question that i have is related to our standard of review which is rather cavalier in this collateral situation so how how is that the record that does exist meets the standard for a man reasonable determination by the state court well i think there's a couple a couple of things there with the red flags that i pointed to  again if there if there had been a doubt declared about his competency we would have had a much more expansive record and we would have had a mental health evaluation what we can base is sign is that in the i'm sorry was a question that was in the  the prison records that were submitted and he b s and they did post date the trial but the reason that they're critical is they document his history in there he had a traumatic brain injury he obviously had a number of psychiatric  episodes in a long psychiatric history and it document his behavior and his irritability and his his problematic thinking when he's not medicated and those are important because the  determination that he needed lithium and so if you put all those together you have a question about whether his judgment was a result of it whether it's judgment rose to the level of incompetency and the only way we would be able to determine that was had he been evaluated at that time but going back to judge gray perspire doesn't that show that the california state courts had that question they resolved it and our standard of review is highly deferential i admit this is a tough case and i received it in a in a tough position and and frankly had i had this case earlier i would have done things a lot differently and i and i one of the things that the attorney could have done was to the obtain those prior history records and perhaps end gives a little bit i little bit tangential to the i a c but i think sort of inclusive of it was that there was obviously this is a man who was mentally ill and this was a kind of bizarre crime that really doesn't scream out for a nine year state prison sentence and that there were there that this judge seemed like she was willing to try and work to do some kind of better resolution in the in the trial attorney just fell down on it the judge invited her to assist we're looking at it and i think you're well aware  whether or not the state courts terminations of what occurred below was unreasonable and i think we have to just include in that review that the state court reviewed this and  that nothing would have gone differently if there had been a competency hearing so let me ask you what you would highlight or what you think would have gone differently if there you know i think there's two answers to that in and and acknowledge that the speculative in part because we don't really know what is functioning was then but clearly there was an issue about his ability to think rationally about the for your plea offer and so it's possible the had he been competent and let's presume that there had been a competency hearing any been found incompetent that if he was competent that he might have taken this for your plea offer and not be serving one your sentence the other it has to do with his testimony which on the cold record it leaves out the part that this is attorney said you know there were long pauses before he answers we have to soon there were long pauses that you can't tell from the record but more troubling was that he said multiple times in his testimony that he didn't really remember what happened and he was basing his testimony on the testimony and he had h well that's really not the way somebody should be testifying and it wasn't necessarily in his best interest to be repeating back some of the testimony he turned earlier which was detrimental to him and so perhaps had he been competent he might have made a decision not to testify or he might have made a decision he might have understood that your testimony should be based on what you personally remember and that if you don't remember it you say you don't remember it you don't fill in the blanks based on what you heard somebody else sa y reserve my time that's left i understand it's a tough review this is a tough case and you know it's troubling that the judge at the end of the day after being fairly simple sympathetic nails in with a nine year sentence and  tells him that he's going to get appropriate mental health treatment that's a good place for him to be which is not at all the case and it in and sort of that when you hook that with the judge suggestion that the issue of she said i struggled with the issue of whether i should point to psychiatry why would she do that again unless she was seen something and then she says well we can put that off till after voir dire we can put that off until after the trial well that's the whole point of having an evaluation and why you would wait to later is just really troubling but he said the judge hit him with a nine year sentence but wasn't that what the judge had to do under i mean he could have she could have struck struck a strike in or or  done something else there were some other options but the look like they weren't really very well litigated in even the unfortunately the trial attorney sentencing memorandum barely mentions any mental illness even when mr mr simon his testimony volunteers that he's got a mental illness the judge strikes it because it was in response to a question and then his attorney doesn't follow up and actually elicit it so that he can properly come in so there are a lot of things that are troubling about the case and i  do recognize that i have a tough standard despite the trouble and yes thank you thank you we'll give you a minute for a battle on the time here from th me please the court viewing for the warden fisher is not entitled to his relief in this case as a claim one a reasonable judge could find no bona fide doubt concerning teacher's mental competency the record showed that petitioner was alert articulate and the judge was sort of this volley back and forth of who should be responsible to pursuing his his question of mental you know stability at that time i don't know it's just kind of eight and that the trial judge on its own motion can order a compass hearing but in that code itself he asked for defense counsel's input and when asked for his input defense counsel said the only thing i can tell you is that he recently started looking carbon it and he's more reserved and withdrawn than he was before and so that was the call back and forth pretrial it was just to stay with the process yes but that's exactly what is being challenged here sufficiency of what the lawyer did in response so so yes it's it is somewhat frustrating that the lawyer didn't push farther but that doesn't that doesn't necessarily mean it's unreasonable what the state court a correctly standard here is whether a reasonable judge could buy no but if i doubt based on the record that the trial court had before it and they're the only simply had a statement from socially pretrial they only had a statement  this there was just no evidence that mental illness rose to the level of incompetency there's no i wasn't the counsel ineffective for not requesting a competency review or hearing there was no evidence petition was able to confer and help in his defense or didn't understand the rational or factual basis of the proceedings and that's the level of a cop and see again the record reflects that petitioner and counsel conferred throughout trial and there was no the best place for mr simon's mental health treatment i mean really appropriate comment at that point i mean when you see here that comment in light of the context just makes you question a little bit what was going on you know i can't speculate i just know that from the record it appears that he wasn't getting mental health treatment and i think when the four year plea offer was made i think a sister counter saying you know he would serve no time and maybe go to a mental health treatment and over the sister but that's the only thing he said he said maybe i would go and seek mental health so maybe that was a comment on the fact that at the time  two point one a number of of comments that were just made are not present in the record like i don't understand how we know from the record that mr simon was alert inarticulate or that he conferred throughout trial with this counsel there's there's that's evidence at all from the record or in in regard to his waiver of the rights all he did was say yes or no and again that doesn't somebody could be incompetent and be able to say yes or no but you don't know whether they were rationally thinking about that or understanding it and then the standard is what a reasonable judge would do and with all respect to the trial judge i don't know that she was operating reasonably she repeatedly questioned mental health normally well i think i mean behaved and didn't act out as opposed to but but one could one could be incompetent and sit there docilely at a concert at a counsel table respond to the judge's questions or  e can be drawn from the discussion that's in the record will he was not not understanding what was happening he he did he answered yes or no to the waiver questions he did testify again there was a according to council long pauses and he did say a number of times i don't know i don't understand the question i don't understand question he did say documented the ten or twelve pages where he says that and then he does accept responsibility because the judge t o give him a little sentencing break he had two misdemeanor cases that were there were joined at the end in the judge basically said i'm going to you know not give you an extra two years and so you know and then she says i'm proud of you you know for a responsibility when you're going to go to prison and be able to help other people there and just kind of some things that are a little bizarre does re raise the question whether reasonable judge had been in that trial court position who had made the statement that they made