bear the burden in a hearing before the federal habeas court of proving petitioner’s competence at the time of his trial). In determining whether a meaningful hearing is possible, courts look to: (1) [t]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the. availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials. McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir.2001) (en banc) (internal citations omitted); see also Nichols, 56 F.3d at 415 (<HOLDING>). In this case, the lapse of time is certainly
holding that the defendant could appeal the district courts order granting a new trial because his right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place holding that a claim not raised before the trial court will not be considered for the first time on appeal holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that an appellate court may only consider those facts which were before the court when the trial commenced holding that even if it could be considered retrospective hearing conducted by trial court on second day of trial was consistent with due process given the lack of a lapse in time the fact that the psychologist who testified at the hearing had interviewed petitioner and prepared a report five weeks before trial and the trial courts direct observation and question of petitioner just before the trial holding a pretrial hearing on the waiver of counsel conducted three weeks before trial was the start of the trial stage where there were no changes between the pretrial hearing and the trial