morning the morning your honor samantha touchtone for petitioner in appellant arthur peyton i'd like to begin if i could with mr payton substantive due process claim i believe it's critical to address this claim because the report and recommendation adopted by the district court judge applied the wrong standard and neglected consider critical evidence first and foremost mr paine was not required at that stage to prove his incompetence the district court stated that the record does not demonstrate mr payton's incompetence mr k pain is only required at this stage to raise a bonafide doubt as to his incompetence a substantial doubt a reasonable doubt mr paine has certainly done that evidence not considered by the district court included very critically the fulton state hospital records these records evidence very similar to the pate case that mr payne has records were not before the state trial here because that requires in effect the federal district court to have the authority to hold an avid interest hearing yes your honor which it doesn't  opine on confidence now i recognize that those reports aren't aren't available counsel represented that he had considered them and they influenced him and his advice with respect to pleading guilty is a clear inference is that the two experts did not find any question about competence nothing especially when you're looking at his failure to develop for example his failure to request an evidentiary hearing he never reached the stage under which he would have requested an evidentiary hearing under california law and although it wasn't mentioned in the briefs i think this court's case in horton v mail address that issue very clearly here because there was never an order to show cause issues there was never reversed there was never that the point was never reached at which mr payton would have requested an evidentiary hearing moreover mr obligation to have made an effort to develop a record in state court and where was that well you're on the the end mr peyton as someone who has thirty eight years of diagnosed schizophrenia to develop his claim in the way that it was developed in district court once he was appointed counsel can be held to a standard of pleading such that he can never receive a hearing on his competency you know want read his papers i mean they're pretty demonstrate that mr paine is someone who is suffering from a severe and debilitating mental illness before the trial and this was something that was before the trial court he wrote letters to the court saying i stayed here in the city of los angeles without killing anyone reason a constant sound of men voices day by day have irritated my mind these are letters he was writing to the trial court in his motion to withdraw his plea he noted that his counsel had prevented him from submitting drawings to the trial court of all of the insane if i could i'd like to return to his substantive claim because i think it's like its stance and it's slightly different posture and that this court can consider evidence that wasn't before the trial court it now raises a question that he was competent at the time that he pled guilty what mr paine is asking for under what is a very low standard in the earth case as discussed in the earth case is an evidentiary hearing to show that there is a substantial doubt that he was competent at the time that he pled guilty now you're back to the same problem never really is not the question of the state trial court it's never raised in the court trial state obviously all of us know that if a person is actually incompetent mandate for an evidentiary hearing because the district court resolved a credibility determination with all conducting a hearing in the present case however the district court did not have to was resolve any credibility determination and fact in the final reporting recommendation in a footnote at the end the district court did make observations regarding the report by dr monkey o regarding an examination also comment on and of an argument raised by opposing counsel regarding the request for an evidentiary hearing because the court of appeal the california court of appeal in california supreme court petitions were denied with citations to swain those citations show a failure to plead the claims with sufficient particularity and so to the extent that an evidentiary here art to the extent opposing counsel claims can create a situation where a petitioner is so incompetent that he or she couldn't form the necessary allocations to state a claim i would refer this court however to helen's excerpts of record at page sixty seven this is the petitioner was no longer suffering from psych psychiatric or psychological disturbance and and so i don't believe this is a situation where the petitioner was so incompetent or there suggested in the record that petitioner was so incompetent that here that he was unable to make sufficient allegations and in fact if he was being assisted by other people and in the citations to swain puts petitioner and whoever was working with him on notice of the need for additional allegations and in fact even as as we point out in our alies brief petitioner is not barred from returning to state court and pleading his claims with sufficient particularities as long as he can survive other procedural bars such as timeliness or whatever but this is not a stipulation is not exhausted pardon me you're  it's not exhausted yes we make the argument that his claims are not exhausted but that did not preclude the district court from denying the claims on the merits and respondent does not waive exhaustion however this is but my my point for referring to the swain denial and petitioners ability to go back to state court is that the state this is a case where the state court has not prevented an evidentiary hearing there has been no request there have been no sufficient allegations made in state court in regard to the claims and and there is nothing preventing proof a petition from going back and seeking that relief provided you can justify his his delay or or any other erred regarding confidence you look to the record and the material before the trial court at the time and when petitioners sought to withdraw his plea those letters that he wrote to the court regarding his request for placement in a mental health facility his request for being housed in the facility with men and women and those records along with petitioners behavior along with the probation report which also makes some mention of honor i guess i never considered that point however i don't i guess i don't know the answer my first instinct would be to say that state and federal courts have concurrent jurisdiction over federal constitutional claims however about i certainly would if i were representing the people in that case or or consulting with the district attorney's office i certainly would be you know showing this court's opinion and  court to allow us to have an evidentiary hearing on that issue or to more fully briefed that issue the district court never really considered that and never really addressed mr payton's request for an evidentiary hearing in fact not address it in the report recommendation report finding him in two thousand and three just still remain a paranoid schizophrenic and it's substantial evidence especially given with the fact that in one nine hundred sixty seven he was first committed examining these same symptoms and there's evidence in the record going back to his childhood of these same considerable mental health concerns i would address just for a moment the report dr mungo where she discusses the california department of corrections report i think that that's example that there was a disputed fact here whether or not he was competent to plead his case properly before the state court or whether he was capable of more fully developing the facts in state court or whether what he pled is really at the limits payton the opportunity to brief and argue and have a hearing on whether or not he was competent or bill able to more fully plead his claims ok thank you very much counsel both of you the matter just argued will be submitted in