it involves facts that were no money relevant to the criminal case yet profoundly relevant to the civil case and i'll give you some examples of those facts that you know what i mean and for example case the prejudice that you are alleging in the related or collaterals civil litigation and i guess i would ask you again do you have some case law that says that this is a recognizable conflict that we can afford claim that in the absence of this conflict your client might have been declared incompetent that was that was where i was going next is had there not been a conflict dr prejudice it has to be some showing that the result would have been different from well in in the report itself you look at just some of the things that dr sheltie started to when he was trying to keep the defendant out of prison which was that he had persisting h he heard voices paranoid ideation he was his judgment was poor and he had minimal insight which one of the things that you need to be confident is the ability to make reasoned choices  to him that he couldn't do it and why he didn't understand there were things in that report that were red flags that a court had to sponsor didn't have a good face police that maybe he wasn't competent and there should have been hearing the argument that that had there not been a conflict the report could have been written more strongly yes i think all of these factors were things that he minimally needed to put in to support his recommendation that the defendant cannot incarcerated but it doesn't help them in regard to competency which is where the conflict comes in and the prejudices that make sense well i guess the argument has to be that that based on the symptoms that you just articulated that no reasonable psychiatry is applying whatever the contemporary community medical standard is for treatment of this type of illness would have lawyer to address whether or not his client could withstand prolonged incarceration that's exactly right if the psychologist wasn't engaged to render an opinion on competency as we sometimes do in federal court hired to do that particular aspect of the case doesn't that make it more difficult to establish differences where are you saying that the trial court should assume a smartie order the competency hearing that the state court said was perceived really bored because it wasn't raised in the first petition i have not found that there is a section of the response brief which cites to the minute order of august thirteenth nine hundred ninety eight completely out from the competency claim that arguably it could be exhausted simply because the state court over it found that it was precluded because it was not timely and it was not newly discovered did go to  the merits and say that it was most americans actually that's that that is permitted and the alternative that the state court did find that it was not timely and it was not only discovered evidence that along with preclude court had a bona fide doubt about the defendant's competency and in this case we're talking about a procedural to a process if we're as the defense is asking that the court should a suicide bomb to competency hearing in that case the only evidence that the court can consider for the procedural due process claim is the evidence that was before the court at the time the only thing that was before the court in be highly probative if he does not urge the court that his just his client is incompetent so and and his demeanor that is not alone sufficient but combined there's a very stringent examination of the possibility of prejudice and in this in terms of confidences or to destroy every responsibility but when it comes to expert witnesses there first of all there is no arizona i mean united states supreme court case that says they cannot have a conflict free expert witness and that there is a difference between the roles of a client attorney relationship and an expert witness because an expert is there to give information to provide opinions he's not an advocate to the proceedings and i have given the court as not seen anything that looked that would be in conflict with the arizona standard is the same reason why he wants him to be found competent which is why he would be incarcerated if you were in prison he would be incarcerated if he were found incompetent if he's been caught custer rated he's not is likely to be able to pay the that's a possibility from the conflict yes he would have more opportunity to raise money to pay the restitution or the civil judgment if he were out first ok that's correct just i couldn't find a petition for a view in the record on appeal however the district court could have sued the sponsor considered the procedural default they decided to consider the case on the merits anyway they declined to do so