mr blair is waiting for the court to order his release now after all he has already won his case has been mentioned on the radio at least once a week saying clinton has him and special security because they know he's about to be e it seems to me that we're limited either to determining whether the district court used and in correct legal standard or if not whether its findings are supported by the record so would you address those legal questions to rather than arguing for in the first instance that your client is not competent client be prejudiced by the use of an incorrect competency standard on the issues that are in the main merits of your appeal here thing as an excessive delay quien in this context that it does not state a claim as a matter of law and so more generally i would appreciate your comment on what a fact and statute that they were convicted under is unconstitutional and let's say that the supreme court has held that the statute is just fine and so in a situation where there's a legal issue and it's been decided the use to which a competency finding or a finding of no confidence to would apply in other words the district court did take evidence and heard from competing expert appears to me that your answer suggests that there isn't more evidence to be brought to bear as much as you disagree with the way the district court looked at the evidence proceedings and so why wouldn't that be sufficient to support the magistrate judge's decision regarding which expert to credit more or whether or not whether or not to disregard both expert opinion why this court was in the support of the competency hearing at that they're asked of the court order that the declarations by experts will come across the direct testimony at that point although he directly answer your question you know there are no guidelines for rules or statues that tell us how to handle these competency to proceed hearings in district court not  that the standard for confidence at this stage of the proceedings might be less than it is a trial but the court didn't go on to decide whether that was truth so that was all that we have the font that i had at that stage was well considering that i don't want to create any type of issue for appeal the safest way is to treat this proceeding the same way that it would be treated at slots at time where the criminal defendant has the presumption of innocen with respect to the standard for considering confidences so our norm i guess i'm at a loss to understand why the court didn't fall on the sun well you're wrong again i think i think that d s case that would now stand on its head to the test for competency at a time where the constitution doesn't tell it and that that's it doesn't make sense you don't have to overrule names and you don't have to disagree with mason but you could limit mason to what was going on there in authority has said for this type of the late client when you're complaining about the way with appeal with an appeal to a court of appeal at a minimum you have to show that you are deprived of some type of fairness with respect to the appeal itself even if it's that that hasn't happened in this case this court waited after the the state appeal initiated to seek precisely what was going to be the outcome to this day there's no flame that that appeal was rendered unfair or the integrity of it was compromise in some way because of the lead it took place between the time that mr blair was convicted and the time that the opening brief was filed so there is no basis upon which to grant relief in this case and because the case absolutely has to that in this court's opinion when it it withdrew submission of the matter to wait to see what happened in the california supreme court explicitly indicated that this was an eighty eight case and as far as i know that would be lost the case at this point in time and for good reason it was very difficult for me to figure out precisely what the nature of petitioners complaint is in this respect i think it's  fact that mr blair filed his pro career he had his petition in state court raising his claims that his appeal was taking too long he didn't ask for released from custody from the california very quickly your honor the only point that i'd like to make is petitioner's complaint about the hearing that stuff doesn't really have much to do with the quality of the evidence that was made in other words there's no complaint that evidence for not possibly declared it can't be you know extremely incorrect it's not the same thing goes once you get into past mental illness to the actual test for competency whether or not he understands the nature of his proceedings the start you continue to to request things from this court in the district court he clearly understands that he's involved in post conviction litigation whether he can communicate with his attorneys well that comes down to whether or not he is unable to do so or it chooses not to do trial to place upon the party claimant competence the burden of proving that upon is that the evidence that the defendant is incompetent this holding does not dictate the correct procedure for determining mental competence in a federal that's necessarily true your honor i mean there certainly was a distinction drawn gates with respect to what type of remedy you will for whether or not you can get somebody in that strength because there's a difference for sure because in that for you is that i think that that nation really can be limited to what was going on in that case without offending the decision and without being this ingenuous and that if there is if there is a higher court that this agrees with you on that point someone will be free to pursue that  really specifically about process in the sense of what evidence was submitted or how he has dealt with it it's a question of how the court arrived at a finding of confidence or confidence which is somewhat of a different question i'm not sure why the fact that he otherwise received due process insulates that if it was an incorrect analysis in this analysis but if the district court i was incorrect in the way it's thought about the competency issue why isn't that redress of all by telling the district court to go back and i mean i don't see how we can ignore that well you know again that's the state attorney brother your honor and again it was i don't know the to the extent that they're trying to quiet outside the confines of that case maybe it was difficult but then that's voided if we get back to the beginning of the soon that will leak has to be the night in this case the matter becomes irrelevant and that really is the most solid lead to dispose of this this issue because there are some complicated matters that the court doesn't necessarily have to reach and that will be one of them if that happens but