reminding the panel that no evidence whatsoever of incompetency was a deuced at trial and we allege that the reason for that is ineffective assistance of well it's difficult to know because any conversations between counsel and client were what you said to the unknown what tell me what you know what i do know is that during this period and unbeknownst to trial counsel for failure to investigate where mr unbeknownst to him then he didn't know right but he has i said what was there in the course of trial that alerted counsel or the court that there was a need for a competency well at at the mister mr weeks and his wife had a considerable methamphetamine problem and it was michael's stated desire to keep that information from counsel because as a nineteen year old lay person he believed that if that information got out it would only add to the misery that he was going through with mr hale and he just instructed us to throughout the course of the trial  fiance submitted himself to the southern arizona regional medical center because the wife knew as did the rest of the family that mr weeks was behaving as a paranoid delusional  methamphetamine addict and they wanted to get him help this was between the two trials now at the time there was a single your analysis conducted and at that particular time it was negative it was negative and at that particular time what time was that was in between the mistrial of the first trial and the second one nevertheless despite that clean your analysis the diagnosis of the southern arizona regional medical center was was quite quite plain that mr weeks suffered from methamphetamine into psychosis with audio and visual hallucinations and that he needed treatment but did mr weeks have the same counsel on was not so and i just want to make sure yes it is mr weeks i think he's not that is mr weeks claiming that he was incompetent at the time of the direct appeal no we've not we've not made an his company well when he was incarcerated at arizona department of corrections the immediately diagnosed him as had been the case between the two trials as suffering from methamphetamine to do psychosis with audio  hallucinations and the institution itself the department of corrections put him on a program of anti psychotic medication that lasted several years methamphetamine to do psychosis can resolve but it often takes years and presently he is on no anti psychotic medication at d o c but as i say he was on those for several years it's in the record so the arizona  misrepresentation of the record in with respect what happened was because this was a sex case trial counsel sought in a taint what's called a examination for purposes of i'm you know see whether or not the client is likely to commit again another sex offense because the sex offenses are considered to be something that continues that evidence was never was never presented  arguably because it was not favorable the cat got out of the bag during the during the course of p c r proceedings and i think it appropriately but the examining physician was never asked whether whether mr weeks was copping it moreover the examination took place after a trial so whatever whatever the nature of the examination which was specifically and there's just nothing to suggest that there's a competency issue well well that's what the judge said well that's what you just said to basically a meeting want to see the demeanor but you read the whole record in union find the evidence well i wasn't i wasn't present all i'm saying is it never became an of mr weeks's interactions with counsel which of course the judge was not privy to because it's confidential there was some settlement conference that was and the judge is there for that that's correct on their not of record it's not  was talking about well our expert dr moran's commented on the apparent sensibility of the testimony and he noted that most of the answers were monosyllabic clipped there was objection the state was permitted to obtain an expert of its own to see whether or not mr weeks was was competent and the state's own expert appointed over objection because they had failed to plead agreed with with mr weeks's expert that mr weeks was not competent to be tried or to enter into a plea and respondents have not challenge they made an election to put all their eggs in the basket of procedural default so there's no there's no challenge here on hevia as well i mean just because in your brief you state that waiver on appeal yes in consistently applied yes and you cite a number of cases or a few cases state versus west money or yes these cases involve a defendant raising a claim for the first time i no i don't know that any of the cases they're cited have a p c r appended to them it's simply that issues not raised in the trial are are sometimes entertained and  so the application of waiver on appeal in arizona is self consciously acknowledged to be inconsistent i'm sorry i'm not following you what do you mean well what's your basis for that state west which i believe is the case i cited listed perhaps seven or eight examples of arizona's inconsistent application of waiver on appeal and it's it so i guess my question is if the courts have this discretion as your sort of you know alluding to then why didn't you bring the competency claims on direct appeal and there was no record evidence or testimony to support it i can't argue a claim  that the evidence did not exist and could not have been found at the time which is inconsistent with our position that the evidence did exist in could have been found at the time trial counsel failed to do so so that there wouldn't be  the newly discovered evidence exception to preclusion in this case because our position was not that the evidence did not exist but that it did but trial counsel failed to be to investigate  it one of the other it was either ineffective assistance or newly discovered you could have pleaded that in the alternative you put all your eggs in the ineffective assistance basket and lost that quite well your honor i wanted to be  transparent i thought i believed in the evidence showed that the the evidence of his incompetency was was present and could have been discovered it would have been in my view an ethical bad unchallenged in state court and in haiti as so and all of the cases that the state relies upon to couch or to close this waiver on appeal which is the reason for the exclusion specifically distinguish between those cases where the where the default is based on waiver from others like on timeliness for instance the law flamm case which i have objected to repeatedly as improperly before the court itself distinguishes between a case in which waiver  just that that waiver is sewage sewage generous and if if as in this case the state has imposed a waiver on a valid and and  they gave you five and a half minutes how can he raise it on direct appeal for nothing in the record in this record the defendant testified at trial in addition there was a set of photos something you agree there's something in the defendant's testimony that that indicates the likelihood of in of incompetence he is saying there was no error because he was competent respectfully don't you admit the least the theoretical possibility that somebody could in fact be incompetent without it being manifested in the  record i think then that would then undermine everything that trial record is about and in particular it also shows what a united states supreme court warned against in wainwright vs sikes that if there is not a contemporaneous contemporaneous objection or raising of an error at the trial court then you are if you are including perverse incentives so that after there was with brio with a jury and the defendant is there and has testified and there was a settlement conference that the charles court observed that then after months years later you can claim retroactively that he was incompetent into isolation of the record do i understand your position then that incompetence can never be raised on law can be raised on collateral review if it was raised and not precluded by state procedural rules and if by are talking about collateral review in federal court it has to have been raised and not procedurally defaulted in state court under ed byrne under arizona's person per preclusion rules so if you wanted to raise a competency issue he needed to raise it on direct appeal even though that claim would be frivolous and a lawyer would be acting as if the claim is frivolous your honor respectfully that's because it's not he would that's because he was competent you can entertain the possibility that perhaps counsel was records when the defendant maybe never spoke that much during trial court you're going to say that that's not a possibility ineffective assistance of counsel claim your honor was raised on p c r which is proper for the underlying claim of competence and the trial court which was also the p c r court held an extensive hearing and dismissed it on the merits and the i c claim i should add is not certified on this to this and i understand that so the answer to my question is you think it's never a possibility whether it's a possibility is a different question than whether or not procedural rules to fault the claim so would it not if you already possibility would have come out in the hearing the trial court had the p c r court had a hearing on that bo understanding let me let me let me ask about that that was never reviewed so isn't it the case that that trial court the post the collateral review trial court's findings don't get any deference because they didn't get reviewed on appeal i'm sorry that's incorrect it was they did petition for a view to the court of appeals and the  you want to look at the merits you still have to give deference to the trial court's findings the p c r courts might not understand that what's the basis what's the best case you have to allow us to look at the p c r court's merits findings well as in the cases that talk about the precluded from no no no that allows us to look at the merits of the p c our decision well i think that you can do that under twenty two fifty four but i also think that procedure you are procedurally precluded briefing that that from your briefing that we have to look at the state court of appeals decision which and from prague need i won't give you this opportunity to tell me otherwise then we really can't or shouldn't be looking at the i think if you want to reach the merits but you are procedurally defaulted from doing the best case the best way to look at those mirrors is to look at the district at the p c r court's findings because it had a full hearing what case rule allows us to do that i guess is what i'm asking well you're asking me how do you go around the procedural default rules if you want to look at the merits of the statement when the claim number six because you're suggesting that as the only reason i'm asking that well if you want to look at the merits of the p c our courts are the best because under in holster and under twenty two fifty for you to you can't look at new evidence that was if it were any that was put in the you can't remand in district court has already ruled on this in or trying for a moment the possibility that the panel would decide that there is not an enforceable procedural default so then we go and you say look at the p c r of the collateral course findings of fact after the competency hearing if the claim was that those were clearly erroneous then arizona law would allow appellate review there has been no a pellate review and now there's no opportunity for appellate review so why would we defer to a trial court's fact findings that have not been subject to the review that arizona otherwise would provide decision that's wrong that we're going to overturn the petitioner just lost the opportunity for appellate review on the merits if the appellate so you're saying that if this court found that the arizona court of appeals misapplied its own procedural rules that if it's not a procedural default within the meaning of federal hall it is no i understand but it if it's it is a procedural rule in arizona that claim i started by saying entertain for just a moment suspend your disbelief and entertain the possibility that we'll disagree with you on the procedural default issue and i hope on the merits there's just been no appellate review  that arizona ordinarily would provide right but you but there has been mean collateral review like the p c r court is in fact lateral review so there has been fact in state court findings on those a structural year isabel a structural area under now you're talking about three different kinds of review and that a court of appeals would do in arizona right so if a defendant raises an issue in trial court and it goes to the court of appeals then it will be reviewed for harmless error if a defendant does not raise an issue in a trial court then it goes to the charts for the court of appeals as a view under fundamental fundamental or structural error standard in fact but no so  still has i would raise i would have thought a trial court i would have thought a trial or something that you could look at what happened at the trial and decide whether it had injuries impact on the proceeding right and so but for incompetence you can't look at the trial record and say here's the ruling and here's how it affected the outcome if the defendant is incompetence like trying to defend it there has no lawyer it's a structure where well but if a case so structural or generally comes from enumerated rights in the bill of rights correct what how the structure of a trial happens before a jury opens to the public right to counsel with a column offended competence comes from a general due process  underpaid it comes out of the due process clause so it would still be evident in the trial record all of those things are evident in the trial record particularly in a case where the defendant testifies  position to determine the competence here incompetency of his client the failure to do so does not vary by prove that the client is competent and in those cases despite the fact that there was no evidence a deuced during the trial proceeding collateral review was entertained and i believe both defendants got relief second if a court a state court on ambiguously invokes and realize upon a procedural bar that is later found to be inadequate then reviewed by this refer refer the court to a case that was mine james versus ryan which invoked i believe cohen versus bell united states supreme court decision  and there can only be one reasoned state court decision one doesn't parse out the claims and say well only the p c r court decided on the merits of the competency issue  the court of appeals didn't therefore the court of appeals decision is the american fifth if we agree with all of that yes or if you get to the point isn't the question whether the district court the federal district court should hold of evidentiary hearing controlled by the c convincing standard one would have to look at this whole record and decide that a court could find clear and convincing evidence that the van that was in fact incompetent during the trial well i'd have to think court in order that a competency hearing be held there and it did the state court obliged and found him competent in the district court upon return  mcmurtry it was in the early two thousand i believe i'm not exactly sure judges a do you know if it's a well it depends this case came up and down so many times it's hard to know what what point it was that in one thousand nine hundred sixty all i'm saying at this point judge because i haven't frankly thought about it is that it's highly cases recently is that he be as courts don't have the authority to order state courts to do anything other than retry the case within sixty days or release the defendant so i'd be happy if if we go down that road to do some thinking and briefing on it that's all i have thank you very much ok thank you your honor thank you very much the case of michael way weeks versus charles ryan  is now submitted