daughters may please the court a cause often have the petitioner appellant mr schon best this court should overturn the decision of the district court which denied mr does have us petition because first at this point it is undisputed that the trial court accepted the guilty plea of a man with a long documented history of mental illness and second that the trial court did so upon notice of mental health issues without conducting any inquiry into mental health without making any explicit finding on the record of his competency to plead due process demands that upon notice of mental health issues that notice acts as a constitutional trigger that obligates the court to conduct a further boykin that show that a there has to be an affirmative showing that a plea is knowing involuntary and that the record has to support any finding to exit in order for the court to accept a guilty plea and the second circuit has made that any time someone raises that the fence he's not competent to absolutely not your honor but i am saying that whenever that the fence is raised the issue of competence is then raised which triggers the obligation to inquire and this inquiry does not need to be a full blown competency hearing every time this is not a great imposition in our trial courts the judge has the duty to satisfy him or her septuagint the plea had seen him i think ten times she said previously for earlier hearings right so what was an adequate basis for her to conclude look at familiar with him the presumption of competence is not overridden by anything i've seen it the plea just because he wants a continuance or may raise this defense doesn't affect my decision as the co obligation to inquire into whether or not the defendant was competent and so the court doesn't need to decide based on the this limited record today that he wasn't competent the court needs to look at the conduct of the trial court but the fact on the record and on the documents now before the court had there substantial evidence that he was not competent to plea on that day what about the record from three days later is the mayor and banks or it think it was a ph d three days after the police says you know he's got bipolar problems where he's not on medications she checks off all the boss boxes like thought process was logical and relevant three days after the police and that does not inform the decision to since he was twelve years old first diagnosed with bipolar at age twelve diagnosed with schizoaffective disorder and has been struggling with these issues for his entire adult life and so the fact that he couldn't get this mountain of document terri evidence that the court now sees before the court in two thousand and nine on his own accord cannot be put on mr best a high school dropout liminal limited formal education in serious mental health issues when he presented it to this these two doctors but but she contradicts she says the current records indicate otherwise checks off all those boxes he's fine and he's got some maybe some other problems but no medications that that completes that record one for you to write your i would point your attention to other records also before the court a one sixty one to sixty three specifically a one eighty six where his prescriptions for live with him and respond all were used to treat his mood swings and hearing the voices is delusional paranoid he unless it always has and explicit articulated finding competency when mental health is raised then yes that there's a duty sorry and so the suggestion that there might be in the issue regarding the time of the crime that might be explored is sufficient to trigger an obligation to make a full record on competency as of the time of the plea and precludes an implicit finding by the judge based all of the judge's interactions with the defendant yes your honor that there is a duty to inquire and a duty to make a record that supports a finding of competence and then a duty to actually make that finding and this in many cases will simply require a few quick questions consistent with practice in federal courts under rule eleven i'm not not that that should control what the trial courts must do just that it's not a big burden and it's something that the courts other courts second circuit has made clear in various places cases including pictorial vipul that the court need not defer to a state courts factual determination if the record as a whole does not support that determination and that's what we have here we have a record that is vacant and doesn't support this implicit determination of competence and so it's due no deference but in the decision she's here based upon the court's observations the defendant and his of incompetence the plea wasn't exhausted in the state system first and so that issue wasn't squarely before the court and so i would submit that point on incompetence was dicta for purposes of that decision  but there are other decisions that find similarly led like me to ziac in one thousand nine hundred six also before this circuit that an implicit factual determination of competence quote was not entitled to deference they vacated the plea because the court did not did virtually nothing in the police hearing to develop the material facts as to the competence the plea and that's what we have here your honor obviously factually there are differences but we have notice of mental health issues followed by not competent to enter a guilty plea petitioner himself has been an able to point to anything amiss in his behavior that would have signaled to either of the attorneys or the court that he was unable to comprehend the proceedings or assist in his defense by accepting petitioners guilty plea the court implicitly found that he was fit to proceed and that implicit finding is supported by the record petition himself conducted himself appropriately at the proceeding he addressed the court in a respectful manner and responded appropriately to the court's questions he confirmed that he understood the terms of the plea agreement and the rights he was waiving by pleading guilty and the consequences of this plea and as your honor has already noted this court was this judge is particularly well acquainted with the petitioner judge white presided over appearances over the course of ten months so by the by the date of the police justice white had the opportunity to observe his conduct and it and his interaction with counsel over the course of multiple court appearances hot beverages where are you under the influence a medication was last time you took any medication he told me the medications you've taken recently that's standard material in a plea in the district court there's nothing like this is a very colloquy here what are we to make of that it is true that many courts do ask those types of questions but they are not required to in order to fulfill due process but in this particular case  there was nothing before the court to give the court any reason to think that this petitioner was not competent and as this court as the supreme court has said in module versus full fulford the exercise and the counsel supervisor consulted extensively with petitioner on the day of the plea and neither of them moved for a competency hearing or in any way suggested that there was any reason to doubt petitioners fitness to proceed and s incompetency involved the inability to assist in preparing a defense the failure of trial counsel to indicate the presence of such difficulties provides substantial evidence of the defendant's competence and that himself propose the psychiatric defense to the charges but when the court would not give him a further delay in the case he got his attorney to use that last minute defense to try to haggle for a better sentencing outcome the court had been offering eight years the people wanted to be sentenced to ten years he tried to use this new defense to get a five year sentence deal and with that didn't work he asked for seven years but what petition and that demonstrates the petitioner well understood that he could use his mental health history as a way to try to get the best added advantage for himself doing this case and in fact three days later when he met with the medical health professionals not only did they determine that he had a lot of logical thought process and relevant for processes and that he was alert and calm and will organize but the counter also noted that he asked quote many questions about mental health laws trying to find out how they could quote help his case this was a defendant who understood how to use his mental health history to make the attempt to game the system with it and the fact that the defense that he proposed  tence to plead guilty concerns his ability to understand and comprehend the proceedings at the time that he pled guilty which took place eleven months later and neither petitioners nor his attorney ever suggested to the court that his mental health history or its condition was interfering with his ability to understand the proceedings and while a court is  required to make a determined comment the term nation when there is reason to doubt a fitness competency the court the supreme court has never suggested that a police court needs to make such a just two quick points in rebuttal actually but let me let me start off with a question if i may would you address the issue of what if anything we should make of trial counsel's not having raised the issue that's exactly where i was going to go taken away is the court's burden not the burden of counsel in order to explore this issue once mental health is helpful has an ethical obligation certainly in while we're for close to arguing ineffective assistance of counsel on this appeal we think the fact of his ineffectiveness is relevant the fact is of his lack of zealous advocacy advocacy on behalf of his client is something this court could use to understand why the record was a more complete before the trial court but rely on its observation interaction and decision making we've counsel in determining that the defendant who is  affirmatively and appropriately responding to the court as well it does not present any indication of a competency issue the court can certainly rely in part on his or her own observations of defendant but that's only part of the equation and the court needs to make an explicit finding on the record that maybe based on my observations in part and based on whatever i'm finding the defendant competent that was not done here and conducted the plea and had seen him ten times before around ten times right so isn't that something we have to give deference to a believe it was ten months of of interactions maybe five times but regardless the interactions with counsel are only part of the equation and the judge cannot solely rely on drugs that she said observations of defendant and his interaction with counsel so his her own observations of the phone to us are but there was no explicit finding of confidence on the record which is what the constitution demands to judge drawings points or to be just like the horse that fine is made it seems to me at the four forty proceeding some time later they can't do it and i know proton basis is your argument well if we are to consider the finding of that day we should also consider all the documents that were introduced via the four forty the documents that make clear that he was not competent when he entered his plea because he had this long history of mental illness and so we're going to expand what we view and not just look at what was directly before the trial court we should also consider these documents thank you very much thank you honest thank you both will reserve decision in this case