ignore the law of the case because when the second i'm into position was granted the first amended petition was found to be timely third it must ignore united states supreme court law in davis mcdonagh fourth the most ignored testimony of the court appointed expert psychiatry just in the davis competency hearing in two thousand and eleven and fifth it must decide his competence without a hearing without a medical professional opining on his medical records without the added dimension of a clinical interview and without anyone examining his medication logs in addition to those five things all of which this court would have to do to affirm the district court it probably has to do three other things it probably has to throw the meaning of curial versus miller into flux it probably has to potentially make a large body of equitable tolling law and it has to penalize mr davis were objecting to the two thousand and thirteen r and r which was premised on a timely first amended petition because i'm hopeful that the court will for a judge like me and so you know it for myself it likes to get to the merits can you show us a path to get beyond that one day yes your honor the the one day first off i think mr davis was incompetent for the entire period i think was incompetent for more than the one day the reason we got into the one day obviously is because of statutory tolling but i believe he was incompetent for the entire period mr d if there isn't isn't there evidence in the records that he did numerous and file numerous petitions during that period how could how can you make that assertion judge rogers there is evidence in the record that numerous petitions were filed there is not evidence mr davis filed those petitions mr davis had help with his petitions and in numerous instances in the district court that helps been discussed the magistrate judge in fact that a certain point in the in the case said you know we don't know who did these we don't know whether it was a gentleman named andre booker who was clearly helping him and signed a number of things or whether it was someone else we don't know who was helping him that's something that would have been looked at in a equitable poling hearing back in two thousand and nine two thousand and ten had that hearing happened that hearing which was ordered by by this court and from a panel judge wardlaw was on never happened because after i was appointed to the case we had a conference with the court where the state waived time this court the man did on the two thousand and eleven hearing was looking at his competency in two thousand and eleven it was looking at his company in two thousand and eleven because mr davis wanted me gone he wanted myself and  now judge authority he wanted us off the case he was making all kinds of allegations of a parade of horribles that we had allegedly done to him and claiming that there was a conflict judge goldman looked at it and said we have to figure out whether he's competent because if  then you too pretty probably be gone and if he's not competent then you know i think you could stay on the case so we had a hearing that looked at that time period and his present mental competency then he was found incompetent by judge goldman after it but the court appointed him and he found mr davis to be incompetent and during that hearing i asked him the question how long he'd been incompetent and his answer to that was  mr davis to the best of my knowledge he has had mental problems going back to the one nine hundred ninety s after that answer the state had the chance to cross examine him they didn't cross examine him on that question they didn't even ask him any more questions on that question after that so we have an opinion from an expert an expert who i think favors the state who said i think he's incompetent since the ninety's and that's why you're honored to draw druggers i think he's incompetent during that period i think we can look at it and say we've had an expert  that state's going to tell you he didn't look at the medical records from that specific period two thousand five thousand six and that's absolutely correct he didn't but there's a long body of problems here for mr davis mr davis was hospitalized as a teenager he was hospitalized prior to two trial he was in the task there at one point when he came to trial in this case he was found presently mentally incompetent to stand trial and he was sent to the patent after he was returned from patton he was allowed to represent himself  in what was a mess of a trial he's had forced medication orders since as early as the one nine hundred ninety eight which came and went during this period the two thousand for two thousand five two thousand and six period he did not have forced medication but the medical records indicate that he also wasn't taking that medication and then he had for the medication orders beginning again in two thousand and seven through two thousand and ten and i don't know the current status of his of that i don't know after two thousand and ten whether he was on force medication or not you want to look at that period could you speak briefly on the issue of waiver that is it seems to me in the telephonic conference with judge goldman there was a very clear explicit at least some evidence of a clear explicit wafer by the state i think there were three waivers by the state drawn are there were there were we went into that hearing thinking that we were scheduling a the hearing that that this court had ordered and that was negated when judge goldman asked mr ted of are you going to be waiving the exhaustion issues and the limitation choose as to the claims that mr davis filed in the two combined petitions and the he said and would you waive the limitations on the exhaustion arguments with respect to the identical claims in the two position to petitions mr ted upset correct finally the court said it's my understanding of the claims that are raised in that first amended in that zero six petition now are deemed exhausted and timely so i don't have to deal with those issues with respect to those claims in that petition mr ted of am i right on that he answered yes you are your honor there's a clear waiver and under davis mcdonagh i don't understand how disadvantaged by this waiver and i think he's been disadvantaged by the hearing that having ever happened we're we're now sitting here twelve years after we first filed a federal petition he first filed a federal petition a no fly which i think was wrongly dismissed and then he refiled  hearing twelve years later this court has said we don't favor retrospective hearings on competency and the supreme court's done it over and over it drop dusty dusky pate in those cases you had six years one year and years in which the supreme court said we can't go back and do this now give him a new trial here you would be adding all those pieces together you'd be thirteen years between the period and the time he's going to have a hearing how records are gone witnesses have scattered to who knows where and and all of this is because we didn't have a hearing that we were prepared to have when i came on the case in two thousand and nine because of the waiver so i think the waiver extinguishes everything and could you trust the waiver issue i mean it does seem from this transcript that it was explicitly linked multiple times and that people relied on that thank you your honor i would like to address that first i would like to point out that that was not a certified issue and  the issue the timeliness early in the proceedings but later we we have sort of that the position was untimely and all the parties filed it fully and we briefs that issue the way brace you is there because it's unfair to a party to bring up an issue on appeal when they didn't have an opportunity to brief it below this issue was fully briefed time when this was fully briefed there's no one in fairness here at all the attorney general we made a mistake in originally conceding the timeliness of the petition but when we found that mistake we sort it was untimely and the party's got to brief it how did you have hauser mistake and how is there any evidence in the record of the stake i thought i told the court in a brief that we had mistakenly conceded that the petition was untimely and then we had sort of i'm sorry that was timely and then we sorted it was on timely and then there was full briefing on it which is why we're here right now to deal with the issue that the district court was all to whether the petition was timely or not this was not a situation where petitioner was caught offguard didn't get to brief the issue he fully briefed the issue and the district court also considered whether or not there was any prejudice and in this case the district court was able to get all of petitioners medical records from the relevant time period and also look at all the pleadings that he filed and was more than capable of making the time when it's determination based on those records without any other evidence being necessary but just has never put forth any sort of showing that something was missing or he was unable to produce evidence because the passage of time there's nothing in the record about that the parties were both permitted to fully briefed the issue presented present the evidence that they needed to present in the district court had ample evidence to make a ruling on the equitable tolling issue and i would like to move on to that equitable tolling issue and point out that the that the timeframe we're looking at is that the thousand and six and in order to be entitled to equable tolling under the bill's tatts petition would have to show that mental illness was so severe that he didn't understand the need to timely file his petition and and that he couldn't because of his severe mental illness he couldn't prevail and prepare a minimally adequate hayabusa petition i think if you look at the filings in two thousand and four to two thousand and six you'll see that there's no way a petition of can possibly meet that test he was filing numerous state haiti's petitions he filed a federal civil rights petition he filed another federal habeas petition he showed that he was more than competent to assert his legal rights during the rel this is the case and because i've had this in this record there there is some evidence that at one point during the very lengthy proceedings an inmate named booker assisted him for a minimal amount of the pleadings but petitioner filed a lot of these pleadings himself there was a two thousand and five federal havey as a petition where he personally prepared it and filed it and there's no indication that somebody else was simply filing on his behalf so so again where equitable tolling issues regarding mental health were the result based on medical records before the court and in fact in one of those cases ortho versus yates i believe it was this court upheld a district court finding  based simply on medical records without a hearing but isn't this case a little bit different because the evidentiary hearing was ordered by the ninth circuit no i would like to address that the last time that this case was here this case ordered this court excuse me ordered a competency hearing it didn't order an evidentiary hearing about equitable tolling it ordered a competency hearing and in two thousand and eleven petition i got a competency hearing petitioner makes much of the fact that he didn't get what this court ordered i respectfully disagree he got exactly what this court ordered which was a competency hearing but that competency hearing concerning his competency in two thousand and eleven it did not concern his competency during the statutory period nor did this court ever order a hearing based on equitable tolling or his mental competence during that statutory periods determined whether he was entitled to equal tolling so i believe that just got the the hearing that was thousand and eleven not between two thousand and four and two thousand and six what's more even if some petitioner is incompetent he still has to meet the bills test and he still has to show that he was unable to prepare a minimally adequate haiti's petition and i think this case is unique in that we have numerous filings by petitioner himself during the two thousand and four two thousand and six period that show he was more than capable of preparing a minimally adequate  but at the same time he mr davis filed numerous state had these petitions for example and you know two thousand and five filed a superior court he is petition where he filed a motion to preserve records that had been produced at a pitch this hearing in this case he supported his argument with case citations points and authorities conclusion exhibits in two thousand and four during the statutory period  to discover evidence his right to speedy trial were all violated any any provided case citations of sporting argument and these are just some examples of the numerous haley's petitions you filed that showed he was more than capable of of acting on his rights and if a petitioner shows that he understands that there is a limitations period and he's capable of acting on his rights he fails under the bill's test and holland vs florida he's not entitled technical tolling under those circumstances and even if petitioner was receiving help that is contemplated in the bill staffs if a petitioners able to find help to a system in preparing these petitions then he doesn't get equitable tolling and so to the extent there was some help that does compensate hearing it seems to me that the issue is not so much as current competency but a determination whether he was competent when the two thousand and six petition was pending and the reason being that if we have such a hearing then we can determine retrospectively whether or not the petition was properly dismissed or not in other words if he was found if it was found that he was competent in two thousand and six then we could say the petition was properly dismissed and i think the petition then goes away however if we determine that he was incompetent then i think that petition is still viable so i think just at the outset as far as what we're talking about as a competency determination that's how i see the issue the court said that's how i see it also mr ted of said ok so having said that my suggestion that i had made mr palmer answer was that we could go forward on the merits and he with their suggesting that the merits come first and judge goldman didn't like that that's very different from what the state is now saying the states now try to say that's not what this court did this court was looking at timely is in there that the idea that this would be dismissed if he was competent is suggesting in that argument right there that the understood there was a timeliness element here so to say a month later when we talked we weren't sure we had miscalculated and our waiver was not an intelligent waiver i think is betrayed by that statement you'll find that statement by the way in the excerpts of record at twelve forty five and twelve forty one out of time i don't know whether the court wants me to address some of the issues that we're going to have to have any more questions well i guess i have this question i want to get you back to the what you wanted to open with before i distracted you with my question is what precisely is the relief that you want at this time the relief is complex your honor and the relief is complex because normally where this eight years ago the relief i would request would be a hearing it would be a hearing into equitable tolling and looking at that issue the problem here is so many years have passed that when we're looking at equity and equity fairness when we're looking at for mr davis to attempt to do with a at this point certainly it's better than having his his case dismissed that would take it but it would be incredibly unfair there is no reason for him to have kept materials we don't know who the persons then seeking the a b s petition then the merits of the petition your honor it depends on which claims come in in the second amended petition some of the claims involved and there's a question as to whether these would be timely or not some of the questions involve his competency to stand trial and represent himself in the first place so there's overlapping issues here involving his competency as far as the one day you can look at one day and say there's absolutely one day and that day is april nineteenth two thousand and six because the magistrate judge in the report recommendation says he uses as a baseline he says well he was triple c m s he wasn't e o p he wasn't raised in level to a higher level of mental health standing during that period at all that's false on april nineteenth two thousand and six he word law they were looking for a crisis but they didn't have one they were recommending him for crisis bed and had moved him up to e o p during the period in which they were trying to find a crisis bed the the next day they then suddenly decided he was no longer ethiopian he was triple c m s it's not clear why they decided that the next day there's there's records for the entire week of problems with them but that's one day and that's one day that the district court ignore the second amended petition we have to figure out the timeliness you're putting us back into a situation where now we have to have a hearing as to what his competency was during that period how else do we get to whether the i added claims for the second amended petition it's not the same claims half relate back and initially judge coleman found in his are in are the half related back and he struck out that was the r n r that i objected to that then led to another our in our by a different judge who said no this whole thing's out petition your honor the whether he should have been able to represent himself is forever right in in the instance where he had clear mental health problems is raised in the petition in the second in the petition by us it is not  the first amended petition the mental health claims as to his ability to represent himself and to be competent at trial were not raised in the first amended petition they are raised in the second amended decision and it's logical  davis doesn't understand mr t this has mental health problems so mr davis doesn't raise mental health claims and nor is anyone else raising them to health claims on his behalf so mr booker and his other