what we can glean from the record we have and he was prepared and he was sitting there thinking he was going to testify and counsel decided not to call no coun issues there is an affidavit on some objection and brady issues and white one of the incompetence well i wasn't counsel back then that was years and years and years ago and i don't know the answer specifically they're still around now that's right  talk to them to ask them why they didn't call the witness i did not know i did not i did not contact them in this regard but they did say on the record where we're what we're concerned about here is that this evidence can be used against us a trial which was an  state law that when our experiences a trial judge it's usually the government who gets an affidavit that the lawyer who's accused of being ineffective because that lawyer no longer has a privilege and wants to defend her or his or her reputation so goodbye be just as to the question was so i've seen it both ways it's just kind of curious that we don't have anything one way or the other well you know your honor it's interesting that a court would raise that argument because the courts have looked with displeasure upon falling on the shored so i get an affidavit from counsel that says i that's right i messed up on such a fundamental right so he's subjecting himself to bar discipline by doing that and then it doesn't get credited by the  courts that's correct if you can go on to him and he said let me explain to you why i didn't you might of my to present your argument differently which i might have you surely would not have concealed that from the court if the no of course not if he had said something one way or the other and this is why we wanted a hearing what is he going to say and but you know you don't have to have a hearing to get an operation well sometimes you do i have many capital cases where counsel refuses to talk about many things to me because they know they're on the hook and they're go that concern me about this case in the first one is the district court's ruling that there is a presumption of competence that must be overcome by clear and convincing evidence that's a twenty to fifty for a one argument that is not the case that is contrary to law petitioner has the burden of an a b s corpus of preventing the his case by a preponderance of the evidence they have crafted this notion of a twenty to fifty forty one presumption that no other court has applied and in these circumstances now that presumption could apply if there was actual fact finding on the issues of competency raised in the state hey b s and a finding that says based on this record we say that the guy wasn't with mr rodriguez is co we don't have that here and that's a fundamental error in the district court's analysis that's the lens through which it views the entire case and that's and that's what's wrong with the district court opinion there and and the reason why competency is so important  expressed in the core case of strickland itself they generate a reasonable liss standard and said we were going to presume that counsels reasonable and they say why it's because counsel's talking to his client or her client and because that client is interacting with counsel and offering counsel assistance in whatever endeavors counsel is engaged in and that those are influencing council's decision making process we don't have that here look at the record of the impairments that mr rodriguez has dr riley does testing twenty five out of forty show significant impairment and she says what that means he outlines you know usually  five or ten twenty five it's a remarkable finding of the numbers the numbers i mean you have the numbers there are they seem like big numbers i have no idea what twenty five twenty five and herman's means but we have a we we have a district or a trial judge who's talking to the guy we have trial counsel who is who's made a number of objections but he's only made the objections when his client isn't willing to waive time and  of that he never raises any question about his client's competence this is this is correct this is correct and that's a fundamental error of counsel counsel believe that he has well how do we know it's a fundamental error of counsel well counsel said so said counsel said on the record here's my concern i raise these competency and the time he does it is is when his client isn't willing to do what counsel wants him to do which is to waive time which is exactly what was and then he did nothing he did continue to investigate and he certainly did and the guy and the guy has and the experts as i'm sitting there in the hallway waiting to testify that mr rodriguez now the court referred to the state court record and i think that that's the core issue could a reasonable jurist looking at this hey b s record in the hay vs record is remarkable on competency looking at this a v s record say ok i'm looking at this trial record and that really tells me that this a b s record is not and is not to be credited could a reasonable fair minded jurors say that and the answer to that is squarely no and one of the reasons is that well there are several reasons one of the reasons in that record in this that the court is engaging in an inquiry of that of mr rodriguez that goes as follows long lengthy recitations of what's going on and then followed by the question do you understand that a mr right rodriguez says yes there is no substantive inquiry of mr rodriguez and when ever they do fare off into open ended questions mr rodriguez invariably is tangential and gets it wrong and we have the luxury in this case of having dr mackenzie actually in the courtroom to observe this at the second trial and he offers in his declaration this is what was wrong this is what wrong with this proceeding and now we know why we the nature of these impairments these are not impairments like schizophrenia or bipolar disorder or delusional disorder that are so obvious to us all and i was a trial attorney for fifteen or twenty years i did many competency hearings and i know what they're talking about these are impairments that are subtle and profound and they're impairments that and i and i talked about this in reply brief there impairments that the courts recognize are just as significant just as important just as impacting on competency and we have in the record twice in both hearings where it's actually there's three hearings but there's only two of substance in both substantive hearings counsel carr says after these after the court is making these inquiries counsel carr says you know your honor i was of the same mind as the court initially but then i spent more time with mr murat me yes and i did things a little bit differently i asked some more questions and that's when i became concerned because he yes he can say i understand everything i understand i understand when you ask him to say what am i telling you he can't do it when i ask him to say what are your reasons what's going on here he can't tell me that and so the court finally gets around to saying what are your reasons why tell me why and mr rodriguez says basically i'm rational person would have failed to waive time and say i'm tired of this i just want to i want my right i want to exercise my right my speedy trial rights he's got he's got constitutional and statutory rights where usually when somebody does that and i've had many clients that do that usually they do that because they've got a strong case their governor the government's case of the state's case is weak and will only get better with time and they were wearing wayne these these these potential and we have weighing of potentiality and some of the cases that respondent says like a day of the davis case we have that by the client we don't have that here and usually that's the case here he says i'm going to be staying here anyway i'm sitting here anyway i'm on a parole hold i'm not going anywhere it doesn't matter that's what he says he is just so impaired and so disturbed by the process and doesn't understand it and you can see that in the record every time he has to explain something that's bothering him it's a clear mis understanding of the nature of the proceedings and counsel has to go back and correct it with the court know what he's really talking about is this and here's why this is and here's what that is every time it's the it's a remarkable record on the nature of these impairments and how they affect the thinking process of somebody that is so impaired and that's what dr mckenzie tells us the june twenty second hearing attorney carr says you have to your honor you have to do more make more of an inquiry and the court says and the court in the second hearing in september says this is well look i'm just eyeballing this that mr rodriguez i'm asking him if he understands he says yes and you're not offering me enough to go any further that's what the trial courts are saying to counsel now i can understand although i disagree with it why under the pate claim the due process claim the right to a hearing claim a reasonable jurist looking at that record might deny relief on a paid clee because he's saying i the courts are saying you've got to bring me more you've got to tell me more about these neurological impairments you got to tell me more about this oxygen deprivation and how it effects mr rodriguez otherwise all i got on this is a defendant saying to me he he understands what's going on and nothing nothing which i can't go much further now maybe maybe a reasonable juror is looking at that can say that that's fine under twenty to sixty twenty to fifty forty two but not a reasonable jurist who's looking at the hay vs record the record that the trial judges wanted the record that they told counsel they needed and the record that counsel actually had in his breast pocket i wanted to spend a brief amount of time on the jerk claim and for two reasons one it's clear that jerry langston was dishonest about very fundamental aspects of the case and two that she her questioner saw as an extreme hostility towards drug users and drug dealers and the violence associated with that but the legal errors that i think are important here counsels it clear that she would've been excused for cause well once you take those answers in the questionnaire that she gives and then she says oh yes my brother was a victim of violence right on the same same area same neighborhood almost the same circumstances i don't see how a judge could deny a challenge  that i think i any reasonable jurors would deny it would grant that challenge cause but the procedural default issue that i know the respondent has embraced i don't know if the court wants to hear that but that's a fundamental error of law by the district court contrary once or preceden on when you examine the falls and how you examine them and then the hegland case an implied bias court's going to have to deal with that issue at some point in time it's contrary to an on bank opinion and dire it's contrary to several circuits as the district court noted it's it's contrary to supreme court precedent it's a historical as i've noted in my brief if we confine it and limit it to the circumstances and smith be phillip's the circumstances and hang on when a hearing is held then maybe it has some validity i'd like to reserve the rest of my time thinking thank you morning honors may please the court deputy attorney general sara farhad on behalf of respondent to begin first with the declaration from counsel and the fact that we don't have anything from counsel think that the claim under the standard of review that we're working with here could have and was properly dispose of on the record as it as it stood petitioner needed to overcome the  the op the standard imposed by he needed to to make that record and so we don't have trial counsel's reasoning or or anything with regard to the competency issue counsel that's the record reflect that defense counsel at any time requested a cop to see hearing there is no formal request for a competency hearing as just a baby had noted the record the issues of around competency always were raised in the context of mr rodriguez not wanting to waive time first for the preliminary hearing and then for later for trial and it was in those in camera hearings where the concern about competency was raised he did state that they were kind of at an impasse and terms are at a fork i suppose the road in terms of whether to institute and request formal proceedings under the evaluate him i did render an opinion and i for when i expressed concerns to the judge in september i told him he had a high risk for neurological impairment difficulty understanding even simple requests what i saw in the courtroom gave me grave concern so therefore i have valuated him further i'm a detailed notes i was present prepared to present my findings as to the quote pro found scope of mr rodriguez and competency i discussed my opinion with trial counsel i thought i would be called to testify and i was never caught so what do we do with that and either the competency claim or the ineffective assistance of counsel quite well as my colleague noted that the subsequent evaluation done by mr make or dr mckenzie rather it's not clear when exactly that occurred it's not clear when he spoke to trial counsel and i think more importantly he in that paragraph he doesn't he says he's prepared to present his findings as to the profound scope of mr rodriguez is competency but he brought that to trial counsel on the eve of the third hearing the september fifteenth hearing where counsel and defendant mr rodriguez also it up in court and said we're good he's waving time he's spoken to well i think that the doctors again we don't know the basis for the doctor's opinion other than we would have known after an evidentiary hearing well but the record of the pretrial proceedings before that are contrary to that opinion nor you know for family and competent doesn't mean just with respect to not understanding the concept of waiver for family and competence as an expert saying incompetent incompetent means unable to assist his counsel on able to understand lots of things waiver why not find out what he meant but it's not just waiver that he understood he and he he he asserts a variety of rights he says he's not going to sign any releases he doesn't understand i don't see how that is how that would demonstrate i mean that literally having to before this doctor did his further tests and talked about incompetency generally he didn't talk about incompetency in terms of what had happened in the prior hearing saying things were worse than i even thought when i saw him interact with the judge in court now that i've done all this testing this man cannot help you prepare for dr you don't know how to but i think that that conclusion  contradicted by what the diff what mr rodriguez demonstrated in court after this day after the state we don't have any issue with competency so that's never raised again g to in order to get that hearing but we can revisit that can't we this court could if what if not the fact that the district that this paragraph also says that this doctor was told by the lawyers that they were concern of the state might use mr rodriguez's incompetency against him which was a misstatement of the law which was also embraced by the district court judge i went back and i read the trial court record on that and i it's not clear to me what what trial counsel is talking about to be quite honest there is an inconsistency in the record the dr mckenzie is stating this in his declaration trial counsel stated what appears to be something else in the record but again it's not clear to me what exactly trial counsel was was referring to when he was talking about evidence in the competency hearing being released but the supreme court has described the competency inquiry as having a modest aim seeks to ensure that the defendant has the capacity to understand the proceedings and to assist counsel and here our position is that the pretrial record and the presumption of confidence that that every defendant comes in to trial proceedings with  is ample evidence that contradicts mr rodriguez his claim of incompetence such that fair minded jurist could conclude that the california supreme court was reasonable in denying relief there is some pretrial record where the state trial court is saying you know he seems mr rodriguez seems rational to me he's answering my questions he's intelligible i understand what he's saying his responses are relevan t to the questions that i'm asking and so therefore you know he appears to understand he's competent to answer my questions you know he knew what happened and he knows what he's facing these are the contemporaneous observations of the trial court that are the factual findings for purposes of one d to go specifically to factual findings made in a court's decision and we don't have any of those here this is a deal one case because we have a summary denial and  so i just want to clear that up the questions that mr rodriguez was answering there were many questions where he answered yes or no is counsel my colleague has described but there are also many questions where he gave an explanation for his reasons that dr mckenzie says what he was doing was parroting back what you just heard from the district court or from the trial court judge and i don't think that the record demonstrates that i think what he's there are instances where he's saying you  know how much basically how much longer might have to be here which is nothing that the trial court talked about in the prior question or practicing sort of irrelevant to the question of not if you read it in the context i think what the the the point saying is you know i've been here too long i obviously don't like being in custody right but but there was there was no way that that mr rodriguez was going to avoid the question the question at this point was whether he's getting the death penalty well whether he would be guilty i mean right but that yeah but but the guilt wasn't going to be was not likely to be a serious question wasn't going anywhere well especially if he had a pro hold he probably wasn't going anywhere but at the same time he's saying you know i don't want to sign anything i don't understand that's not implied in the trial court's question of like hav you know what's what's up with these releases are you not why are you wanting to sign i don't want to sign anything i don't understand he said at the third hearing where actually everybody started getting along that you know the c defense counsel came in and said he's now willing to waive in the court directed the question to to mr rodriguez is that true and he says yes they haven't had any time to look into it so he's understanding it's not just a parroting back he's understanding what the judge is asking him and where he can he's you know providing his thoughts one way or another where he doesn't understand something it also seems to be clear because there was a colloquy or a part of the colloquy in the second hearing where the judge asked them you know you've been through the system before you know how this goes in this is no not really he doesn't understand and so then the courts then some time describing you rodriguez what's happening and you know through that i think rodriguez ends up at the you know at the end he ends up understanding what the trial court is trying to convey to him but the bottom line with the competency claim is that defendants walk in to proceedings presume competent they have to if they're not as my colleague suggests if their illnesses or disabilities can be so subtle that nobody else in the courtroom is going to pick up on it then that is going to lead to every a to a competency hearing in every criminal case because how are we to know how are we to this this defendant is sitting here he appears calm he appears well put together he's answering the court's questions but we don't really know so let's state the trial court proceedings and have a competency hearing i think that that's what that kind of rest now is going to dictate and i don't think that that but that's not this case because there were three hearings the issue was raised in two and between the second and third hearing we have more than speculation we have a doctor's opinion that was never different but i was responding to colleagues my colleagues argument about the illnesses can be subtle and you can't you can't trust basically what the court is seeing or what defense counsel counsel and that kind of cuts across both the issue of requesting a hearing on competency and the ineffective assistance of counsel for you know well i mean the statute is pretty clear on when to judge in this case law when a judge has a bona fide doubt needs to raise needs to institute that the procedure and have a competency hearing and even under the statute if the trial counsel doesn't say anything but the judge still suspects he still has a duty that kind of a little bit gets into the procedural competency issue which was an uncertified issue i didn't brief that if the court would like for the briefing on that he had me right in the real world in less subtle situations i've been in situations as a and judge robinson probably as to you call both counsel the bench and say something we're going on here do you think we ought to send them for a forty eight hour competency review or whatever that's not the skins it's not it's it's i mean but again it's a case where i think that the defendant is very clear in those pretrial proceedings and our position really is grounded on on the one on one or the in court observations of of everybody and the fact that the only time counsel raised competency was was when he defined it wasn't rape waiving time and that impeded their ability to what they believed was provide an effective defense in a capital case very briefly on the juror issue  information about her brother being murdered i guess in the same neighborhood it was eleven years before who are here in the case and there's you know absent anything in the record to show that that would have affected her thank you just on a couple of points if i may the court at the third at the second proceeding i'm not prepared today without utilizing the opportunity that mr rodriguez has now given for the doctors to talk to him and for him to reach a conclusion as whether he would give consent earn a position at least to advise you on the issues which you originally raised as accomplices that is whether in fact dr mr is prepared as an expert to testify as incompetency the judge is saying i can't do that reach that issue in seal mr rodriguez sees the doctors that's what the judge is saying he's going to go see the doctors go let him see the doctors then bring it back to me he went and saw the doctors he was incompetent he didn't sign releases because he doesn't understand what they are even after council explains it to him multiple times the court's findings are one mr rodney rodriguez really needs tender loving care two you've got to speak to him in short sentences and three don't use a lot of syllables those are also the trial court's findings does that reflect impairment i  is is a simplification of the record because attorney carr did and he told the court i can see that there's a problem here now i know neurological impairment now i know oxygen deprivation now i know that he's just not being stubborn that