said that once in the reply brief on page seventeen i did thank you center of disorder second and rd the court criticized patrick for not alleging that is feeling causes was readily apparent and ok thank you but what is there in this record that would rouse somebody to find that trial counsel was ineffective for failing to inquire about fetal alcohol syndrome because that's really the issue yes counseling wasn't effective for failing to inquire about it then everything else follows from that what what how when this wreck there's no expert witness that says that's what you typically there's no affidavit or declaration that says he showed obvious effect to tell me tell me what evidence there is that would allow finder of fact to see a reasonable question about whether counsel six so we've got this present report writer he didn't start with patrick any any interviews and he does an interview like a lawyer would hopefully it's done and talks about the d special education classes paragraphs fifty two and sixty six i didn't call it but i had a question about that did he learn that from patrick or did he learn that from patrick's mother that's a good question i something anything if you leave we're going to hunt you down you're going to spend a life in prison if you tell us what we want that we want to hear you we're going to you back to the tribes that was that was labrat language in trial after just a few minutes of cross now you know trying to counsel hopefully we will get there after not too long in the general cell and then some point trial consulate comes to conclusion that like the prosecutor did this is make sense why they would want to me again you confess to three sexual abuse charges involving your discussion it would be obvious i think clear that patrick wasn't thinking clearly human thinking rationally he things were adding up something in the way this is shannon a lot of this is speculation if you look at the history of mr lever do this work history is a mere department in front of the trial judges testimony no one's recognizing this and you're saying that learned counsel saying that would be the standard of practice to the contrary we have a defendant acting totally contrary to some mental defect or disease and at the end of the answers you must but i asked them what that falls short of any bird wasn't well i asked for a moping answer the question i appreciate the question i asked for funds to hire an expert to delve into this the question all that out to flesh out the the degree to which he had f a s t the degree to which it would have been readily apparent the degree to which it affected his the way he answered questions or the way he  prosecutor and that is the record that establishes what i'm saying but my burden as i understood it was to not not present evidence i asked the court to allow me to do that and the court said no no need to do that don't worry about  this true had anyone sat down and just talked to him for a couple of minutes then figured out that the interrogation in that room for two hours with agent overby just met you right and he answers yes well let me just stop for a nd that's not true he met agent over beat a month or so before that it's on the record on air over me testifies that over being three agents held patrick in a band and interviewed him for twenty minutes before he had to go on were before patrick had to get to work this is a month prior so this isn't so  the point is patrick is just a ball you know let's go on they don't know your background correct what's he said there no how does  he doesn't know that and i beg to differ i think they didn't know the background by then well they interviewed him a month or two before that and they don't know your history right know just go along with just go along with  tated and she now had them in this room alone this bare room for two hours and then after that two hours then he puts a tape recorder on and then patrick this is copacetic statement let me just finish a little more questions here the prosecutor they asked you questions but you provided responses detailed responses correct yes and they didn't know that information beforehand right he disagrees them yeah how does he know and pay no course they know they  good morning and may it please the court my name is cassidy adams i represent the united states in the district of montana i'd like to start off by talking about the standard of review because there's two standards have a view at play here the standard overview is  appropriate particularly in light of the record in this case i know spend the majority of my time on the fetal alcohol ist issue judge morris in his order denying the defendant's twenty dollars to fifty five dollars motion essentially  he does not oblige that a reasonably competent attorney would have observed that he does not allege and that's exactly what judge morris found was that this defendant alleged that he has fetal alcohol syndrome and that counsel didn't investigate it but he didn't allege he would have told his attorney if he had asked he didn't a wedge that it was obvious to a reasonably competent attorney and from there the court can also look at the facts in the record the record is clear that a reasonably competent attorney would not have known that's had had the defendant not told them that this was an issue in the record that mr the defense attorney asked mr lavender what the circumstances of his confession on cross examination mr lavater i agree that he was fairly educated and then also told the prosecutor oh and i have tended a semester of community college he goes on to tell her that he went to the f voluntarily went with the f b i voluntarily he was totally fine on the day of the interview he was not forced to make a statement and his statements were given freely furthermore if you look at the pre sentence report it's easy to take out those two statements but you also have to look at the fact that in hate paragraph fifty nine dollars of the pre sentence report the defendant reported no medical problems and he reported that he is in good physical condition  because it has a little bit of force he says look any competent defense attorney investigates the background of the defendant and he doesn't say this i'm saying any competent defense attorney would have  the question has why would any reasonably competent why would that not be enough in this in this case you can look at the record and you can see that it was not reasonably obvious to this defense attorney based on what his client's testimony was under oath and based on what his client's testimony was and response to his own questions based on the pre sentence report based on the recording of the interview it would not be reasonably obvious that this would be a defense that you have to adopt the question is not could this have been a potential defense judge morris found that it is a potential defense but is counsel ineffective under the constitution and having the most damning evidence possible presented against you and having essentially no answer to it because we saw what was supposedly the strategy the trial counsel whatever it's going of your honor the claim regarding the confession itself and whether counsel was ineffective for not raising the coerced confession is an issue that claim was denied a certificate of appeal ability that was claimed number three but looking at what this counsel knows an attorney has to have a good faith basis file a motion and believe that it would succeed there is nothing in the record  that would lead this attorney to believe that this would succeed and then furthermore you have to look at the prejudiced chronos wow and i would like to remind the court of that in this case the court heard from a number of different witnesses it was not just one witness st another there were two for thirteen witnesses for allegations of sex assault two of them were the alleged victims in this case and then were witnesses who came in and claimed the defendant had sexually assaulted them under similar circumstances notwithstanding whether counsel was reasonable or not which we assert that he was particularly given the record that was all very strong evidence the defendant would have been convicted regardless so that is very strong evidence particularly in light of the similar circumstances these two women allege mr lavater sexually assaulted them while they were asleep so that is very powerful evidence furthermore i know that my time is short and that we're on  this th circuit found that there is no per se rule that a defense attorney must get his client's mental health evaluated that counsel has to conduct reasonable investigations but there is no rule that in every case you must do some mental health evaluation even if later on the defendant and that defendant it asserted that a mental impairment defense would have served him better you have to look at what the attorney in this case knew there is no evidence in the record he knew this was an issue and certainly not to the extent that his client is now watching and you have to take the defendant's statements that he made under oath and give significant weight to those statements especially in light of the new statements are coming up later he testified under oath and that has some meaning and some importance so if there are no further questions at all in my argument then i appreciate  have played a role in his response to questions the trial consequently his allegation that his pretrial statements were involuntary cannot be decided on the existing record but to the court noted you know  argued in closing this doesn't make any sense and it doesn't unless you factor in f a s t or something else that was backing his way d the way he thought and process information and like i say to the record the trial transcript patrick on cross examination answers the questions the prosecutor put to him and he's trying to tell her luck these officers when they interview me they assume i go they wouldn't take no for an answer they promised me leniency a promise to keep my confession a secret a promise to send me back to the tribe if i told them what they wanted to hear you know these are all the retail interrogation ever in the house but you know that's that's he was convicted on that because of his confession that's precious all right come to he was convicted on count two and the prosecutor later acknowledged that there was no evidence to support it that was just