him to enter pleas of guilty to four counts and five an indictment knowing full well that he was under the effects of percocet and not competent to do so at the time for the what's in the record we don't know that it's not the mere fact that percocet could potentially have an effect on an individual we have here is mr howard setting forth the claim that the amount that he was taking affected him to a significant degree so we had his statement first of all that he was under the influence of this but there's also additional indications in this record that lends some support to that statement on the part of mr howard and the colloquy between mr howard and judge hannah there are times where it guilty in a moment where he's supposed to be confirming that he does want to plead guilty and then the end of the hearing mr howard engages in a somewhat inarticulate rambling statement to the court so this lends support to mr howard's claim district court becomes aware that the individual is online if scription narcotic there is an obligation on the courts part at that point to make a searching inquiry to find out what effect that has on like this really agree but i'm not sure  jury room there waiting to start the trial and the defendant basically orts the file all the witnesses go away everybody's preparation is wasted on account of this plea and then after it's all aboard he wants to take it back that's that's that is correct i mean that is the way that this played out he went to court that morning with the intention of taking this case to trial so it's clear that you know the point prior to getting this offer had every intention of putting the government to its proof in this case and once he got the offer which was at the last minute he did you to accept it but i would say that you know the transcript i think it's difficult to tell from the transcript exactly what level that took place in miles the stayner every indication in this record is that this was a very last minute deal that was offered right there when they were ready to go to trial so unlike miles where it was apparent that there was this opportunity for counsel to discuss with his client the effects of eating when the assistance of counsel i can imagine a case where i'm defending a guy i worked out a terrific deal for me even wanting to plead from the get go if you could get a great deal the deal i got form is wonderful he shows up that day through run through it wrong it strikes me that the best thing i can do for me in order to render effective assistance of counsel is somehow get him through that hearing and get him to take the deal rather than have it fall apart and so even though the judge erred in letting the deal go down council does not render intend to take this to trial what you counsel know about mr howard's level of functioning i mean this is precisely why we need to have a hearing in this case it's possible i assume that the case for play out that way it's also possible that this was the first time supplemental excerpts of record and i believe if the court examines the transcript of that suppression hearing which i did read prior to coming to court today there is actually a reference in there when there is that discussion as to whether or not the defendant is and counsel argues that there was some ambiguity as to whether or not mr howard wanted to enter a guilty plea and i would point the court if i might add to the very initial part of the transcript  record page twenty seven where the court on does a very detail set of questions with mr howard what is your understanding the court asks what is your understanding of why you are here right now court is that what you want to do are you sure defendant yes i would point to that as opposed to the later part in the transcript we're in which helpful points to where the court a first no response and then yes response is really nothing more than a bit of confusion as to what the court was really asking i think this really sets forth the fact that the defendant came to court knowing full well he intended to plead guilty i don't think we can take one piece of the transcript in isolation i think we need to look at the enter transcript and i think if you look at the entire transcript he does give a very correct and lucid response all there well i believe your honor may be referring to the discussion as to whether or not he would remain in the custody of the u s marshals or whether or not he would go back to the nursing home and  pretty good i mean really good also and just having a million holes poked in you and you know you kind of come to trust to the trust of one you know he's referring clearly to the tru doctor and i almost am almost through this deal right now and i would like to see it through for my daughter and my grandson and my mom and dad it's pretty long hard road my grandma and if i get through this much i think that many of the court's questions underscore why this is really the perfect case for an evidentiary hearing but certain things are beyond dispute to me there's no doubts that mr howard was on percocet there's no doubt the judge can recognize that it's pretty powerful that's a very good question i think you know some propositions perhaps are so obvious they go without saying in my search for a case that says precisely that apparently it has gone without saying in the ninth circuit what i do say to those in the briefing is airing via stele out the client side in whether to enter enter a guilty plea and it seems to me that the situation here falls squarely within that rule it would include an obligation on the attorney's part to ensure that the client has the mental faculties to enter a knowing driving and that way you avoid manslaughter charges because of jeopardy not unusual that you're drunk drivers or people with alcohol problems and they may show up under the influence for the  manslaughter cases well i think that that assumes that there was some sort of strategy legitimate strategy involved in this particular situation mr howard and again i come back to the fact that we simply don't have the record to support that in fact mr howard's claims are that the opposite is true there was no discussion there was no plan this was not something that was done intentionally and that his attorney knew that he wasn't competent but allowed him to proceed anyway so in some cases  well he went there with the intention of going to trial that morning so apparently at that point he believed that he had some benefit to going to trial unless of course any other questions i will ask you to reverse thank you