difference in the nature of his psychotic symptoms there are for me pieces of evidence that he provided the first was mr kennedy's unprecedented request to be prescribed anti psychotic where he's competent to be executed now they we have a the date of execution we'll come back to the circumstances and then at that point what procedural processes did you have available to you when you learned of the  forty six o five petition that's correct your honor we did not file that titian because we did not have enough evidence we believe to meet that threshold under forty six zero five and the state is insisting that that appointed for the purposes of forty six o five and that's what we were litigate like to point a couple so you didn't you did not think that you have the authority under the appointment to prove represent him in the state do order to get there we have to start go learn to talk back in our mind to walk us through what have we got to where we are and we can we're not asserting that every fourth claimant is entitle to counsel or to expert assistance at that to make that threshold but we believe that we had provided enough information based on the isn't adequate and i don't see how you could show that when you didn't ask for a forty six zero five hearing and ask for cancelling experts to beef up when the state made the offer i'll give you  s placed on the well but in the state court said i'm going to give you running room breathing room here and they would have done that we don't know that they wouldn't have done that it seems to me you have to at least try i think the problem is that if we had failed to make that threshold and there would have been a determination well then you could say they didn't give us an equal time they didn't give us an a give us cancel they didn't give us experts then you could say i tried to exhaust state petition has made a threshold showing we believed it was absolutely parity that we have at least some preliminary report by an expert who had conducted a face to face evaluation system and without that we were going to make me threshold so our argument is that the state court process the circumstances of our particular case rendered the state court process ineffective to protect mr and his rights but we're not at that stage yet we're we're simply asking for an opportunity to move this claim forward in the federal court in haiti a section you're done with the state as far as you're concerned we may be done with the state there's two things to keep in mind rather we're still asking for an opportunity to develop this claim there play you want to back past the state we've said we've been there done that we're ready to go into directly into federal hades percy but we believe we should be allowed to file a federal hate is titian it's going to be up to the district court at some later time in the future if we do file a federally just to raising the four claims that the claim needs to be exhausted and sent back and that's based on the state making that affirmative argument that we must go back and that's the district court deciding that the state court you to file your federal id that's correct and at that point then the state can present evidence present legal arguments affirmative defense as to why we shouldn't be an  psychotic medication something he had never done nearly twenty years on death row because he didn't believe he was mentally ill for the first time mr pinetti admitted to mental health treatment staff in prison that he could no longer cope with his psychotic symptoms through reading the bible and prayer and third piece of evidence we provided was that mr pinetti was reporting pollution is greater in scope and in increased intensity  this paranoia that correctional officers and prison gangs were in a conspiracy against him for tampering with his food and were contacting his family members on the internet and that mr pinetti believed in addition of right you don't get a new for ya if you agree with that i agree with that we don't need a new judge but i don't agree with respect we don't agree with the use of these firetop it's terminations to resolve the current one and that's because of that look what that what do you mean the use of the power concept terminations these days he's going to put that i was mine i don't know what you mean i think it has limited relevance for purposes of determining whether or not council should be appointed funding should be granted and that limited relevance is soley to determine whether or not mr petty has what the only evidence he's got before him is they it's all these heard this before that he on a claim that we hadn't even filed saying it wasn't measurably different and i think the only question the court should be asking at that point is is the evidence new meaning did this evidence exist at the prior competency determination that's how would you f the question that judge sparks in your view should have answered he should have answered that this was new evidence and that this evidence was not trivial or insignificant and at this evidence was not being presented for purposes of  adjudicated in the sense that threshold state i don't think it was appropriate because if he's the terminator that the evidence is not materially different and we have not had an opportunity especially in light titian in that case trying to hand odds who are two thousand and ten determination that he was competent to be executed by the state court attempted to append two years later in this court new evidence that suggested he was no longer competent in this court said that that prior determination of competency was not undermined by the new evidence and that the evidence was actually a new claim and at this court was not going to contemplate filing or asking to ask us to basically reverse go back out what i want you to do is to to walk us down the path that you want to travel if we sent it back to jets barks and it would have to be because we we think that he was in error and not making the well i think if the court if the district court said that we fail to exhaust and there's nothing preventing us there's no procedural bars that would be under eleven us or love no seventy one we're getting back into state court and raising this claim through an article forty six zero five but now it's a developed play and i believe now with expert assistance we can meet that threshold you're actually asking the federal courts to give you a lawyer an expert to develop a case to you then can where we attempted to get that type of funding experts counsel it was denied us and i think that is certainly adequate information adequate circumstances that show the state court process to understand what your additional resisting your opportunity to obtain appointed counsel and to export assistance specifically employ dr ben an expert and had the man clarity i understand rather to see the red lights on it but i had another question did you argue in state court that article forty six zero five is unconstitutional because the threshold requirement that someone who that wouldn't federal court have to fund it the state process that's provided by statute is unconstitutional and if you haven't asked a court to pass on that in the first instance how can we pass and i don't think we have to determine this court has a chart of whether any forty six zero five seizures are unconstitutional because i think under section twenty two fifty four b which talks about excuse exhaustion it's just a matter of whether the state court process in that particular set of circumstances were inadequate technically it is right or there's an apathetic that the reason you're saying you're inadequate is the wording in forty six point zero five you're saying that you can't meet threshold of forty six point five and you shouldn't be did you argue that forty six o five pm unconstitutional because it sets too high a bar for someone in your honor to be honest with you i'd have to take a look at that a belief system like you put you know we made that argument i don't know if we raised that the filing of a petition just before is considered part of the initial application so that there isn't any reason to worry about the fact that this might be hard to go bad or that we haven't exhausted and we're going to be claim that you didn't pursue i can't think of a situation where or claim that people are especially because of the fact that the courts have recognized the dynamic nature of he's going to be entitled to counsel what will even if he's not all he has to do is make some sort of showing me under forty six o five to allow him to to put that initial showing of evidence some evidence has you do that without a proceedings that that it is more like thirty five million lines predecessor and then it's party in so the state isn't dreary actually when it walks through this evaluation of what the threshold showing is required and demonstrating that it's not specifically says in state court in these forty six zero five proceedings that they're not intended to what we hear in a case like this is presumably a dataset you notice is given and and the individual who subject to that execution date would be required mentally incompetent has he adversarial proceeding and what does the state say so said too bad you can't get there on your own so to hell with well not in those exact words well what are the words what would the state said about this case  because in that case they actually did obtain some of this preliminary funding that they also said it's my understanding and my firm in opposition may be able to explain this better because i was not involved it's been my understanding is that they did request this preliminary finding just as they did here before unless and cancelled in death row inmates can come in and make a substantial showing on forty six of time under no circumstances would the state of texas provide cancel and experts to help them make the forty six a show right and follow it up to the states consistent with due process to develop these procedures and what you're hearing is potential concern about the procedures to confront would be process if he in fact found forty six zero five motion any in ask the state court operated and said out let it be bare bones give me time to instead say yes and we'll give you full pay your lawyer will play your expert to help bones i would have no problem saying not want me to stay given a shot but you're saying you won't do it i guess i can't commit to that standing here at this moment it's just based on my understanding of this  it's not a forty six zero five motion what if they found we say you need to exhaust they go back in foul forty six zero five motion and say you know we recognize that what we found dead in there that we want cancel in an expert give help and so they would go to court here where they say if it's on his office and back state or my understanding how that should go is they would prepare an article forty six zero five motion with the evidence that have been filed at the state individual convicted of killing two person family members if the statute closely says some person is going to do this it doesn't even say an attorney so it does bring up the question how in the world and someone who is attention and copy to be executed to them well i don't think there is a solution lists earlier because well how many times do you get a competency hearing into his death no you don't because you still have to make that threshold showing that this is not a claim that has be see what happens i don't think so you want to because that process is going to be inadequate we've already attempted to do it you know let's say that we wait at least say there is ample state process at least on the books you didn't avail yourself of it and if they apply it to you your client such a way that it's unconstitutional that's a matter but shouldn't we at least require you to file forty six and find in see if you can meet requirements well i think we're going to be involved in cases that we've cited almost every instance that i'm aware of course you want to have that expert opinion after conducting these short of that you're going to have