evaluation if found to be mentally competent but judge chance from later found that he was incapable of representing himself and he was not able to knowingly and intelligent we waive representation counsel was appointed for the trial following mr screwballs conviction and sentencing a timely notice of appeals file and i circuit granted trial counsel's motion to withdraw that is the basis well strong counsel appointed to represent among the people or did he just continue he just continued to represent in the any further were that's correct you're ok and when he moved to withdrawal the ninth circuit informed him that he was permitted to withdraw and then informed mr skirball that he had a right to request appointed counsel or to represent himself and of course this court at that time granted mr sc s request to represent himself without further inquiry into his competence to do so now this court has posed a number of questions and supplemental briefing which focused the issue of today's argument and focus the issue of whether or not mr skirt all twenty three fifty five should be granted and he should be allowed to raise the issues which he was and she did not raise on direct appeal and if i may i'd like to address those questions syriana first the court asked the does an indigent have due process right to be represented on appeal and the answer to that question of course is yes the government has conceded that point but challenged by the government that he was incompetent to knowingly and voluntarily and intelligibly waive his right to counsel and the record is resting the second question their ruling that he was not capable of waiving his right to counsel or was it that he was not capable of representing himself the trial well he was not capable of representing himself practically speaking at trial i can understand as with the saying it could be argued that the skills needed to there has been those specific as no one has addressed that issue of whether or not he had the skills to argue an appeal write an appeal present his issues to the court but i would remind the court that in denying his original a few i believe the court used the language of rambling and often incoherent in describing this discord all's argument and frankly in preparing for this  clifton there are six different skills which are required the trial level and at the appellate level but certainly mr scott all has demonstrated that he did not have the skills required to effectively present his arguments to this court because he was rambling incoherent didn't understand the procedures and further this those points which we feel are valid points to raise and if any in a direct appeal because he was incapable of waiving intelligent his rights were telecast that brings us here and there was a third question posed by the court this is this recourse finding that squirtle was incapable of knowingly intelligent waiving his right to counsel below does that establish the law of the case since it was fun challenge the law in the century remains on challenge now by the government as far as the factual determination is concerned even if somehow became familiar with the process through his involvement in the criminal justice system in this case there is nothing in this record to show that  written waiver that he gave to this court was in any way knowing and intelligent and a lot of the case at least as established by united states versus alexander precludes reconsideration of that issue now unless there are certain specified circumstances some of doctrine apply when the trial court has made a determination does that apply to the public or  of his right to appeal accounts alone that's true but i think the record indicates that he was incapable of knowingly intelligently waving his right to counsel because of what established in the district court record and the record before this court during the hay vs proceedings there is nothing in this record to show that there was a challenge to chechen streams original finding that using capable of knowingly so although they are two separate questions and although there has not been a specific question by this court asking whether or not he intelligently and knowingly waived his right to appellate counsel is one of the been that he was capable of making annoying and intelligent waiver and the court clearly erred in concluding he couldn't make it could have been but we would not necessarily do that and i do not did not notify the court and because this court was not on notice of the possible problems with regard to his competency and incapability then there is indeed precious i know that i have very few in all of the shootings that took place the judge finally decided that he did not and that you mean by disrupt if you are he would stand up and start talking when he had counseled pres that court was was concerned about him having his rush of fair trial and that he could not do that on his own terms which is what he wanted to do but he was not mentally competent he had a  that he would accept in this matter is brother rodney was the only one who understood his philosophy about the court not having jurisdiction of either the subject matter or his was his brother a member of the bar anywhere no iran or in his brother was in court every time he appeared is rather took part in the proceedings his brother was calling as a witness at the com if he was mentally confident certainly the district court found him to be i want to quote from the district court's finding the law in this is that the excerpts of record it pay fifty five life seeking through twenty one if you are the case united states versus turmel i do not think that you are capable of representing yourself and conducting a trial under the federal rules of criminal procedure that you that you must you do not feel that you understand the full consequences of representing yourself or you proceed in representing yourself how the evidence is to be submitted to the jury how the evidence is is to be submitted to the court what are you following it is obvious you don't understand what law  there's nothing in this record indicating that there was any awareness by mr square at all of the same things if you think you know case will be submitted