yes thank you judge martin as i did on tuesday i just want to give a special welcome to my my old boss judge and scanlon we always appreciate our visiting judges helping us to carry the load but this is a special privilege an honor for me i am heartbroken as i said on tuesday that i don't get to peer down the bench and see him on the other end in flesh and blood but i will never forget this opportunity that i had to sit with him and so i'm just so grateful that he's here with us and you know thrilled to be in his virtual presence well judge those of thank you very much i can assure you the privilege is all mine and the honor is mine it is a special event for me to thank you i'd like to start with the question in the court's pretty argument order which goes to the threshold issue before the court quiz the issue and the court asked why mr barrett pro se appellate brief to the florida district court clarifies that he has a standalone claim that his plea was courts and the answer is that construing that pro slavery if liberally in appendix j cited pages and that's pages thirty to thirty one using this court the c f numbering or pages twenty five to twenty six using numbers at the bottom center of the previous mr barrett is raising what clues be called to distinct claims for relief that arise from the same alleged set of operative facts st mr barrett is raising a standalone claim being induced to plead in violation of the due process clause like e c s ages fifteen to seventeen however under quiz b and in keeping with the limited review afforded by the certificate of appeal ability the question of state court preservation of the standalone court and claimed if not before the court today undercliff be there are just two questions for the court to answer st whether the standalone coersion claim was in the federal habeas petition and nd if it was where the district court ruled on it at about the two minute mark we promised you two minutes i've got what i think is the threshold question and it may be like that there may be and it may be the easiest question ever and they have the simplest answer ever but it looks just from my notes like the twenty to fifty four was filed about two weeks before the dca rendered its decision on post conviction and i just want to make sure that it was that this petition was properly exhausted did you did you go all the way up the chain and i'm just trying to figure out i mean did you go to the florida supreme court no no no please go ahead i'm sorry you can tell i'm just kind of flailing around trying to figure out the procedural posture no your honor we did not  that's my understanding your honor and no one has raised below in the in the district court or here any any issue with that so we think it's probably before the court ok well i don't want to hang you up i can kind of track that down i just want to get straight my own time you're relying on pages two thousand four hundred and twenty five and twenty six is that right yes your honor that's the core part of the argument although there are other parts of that brief i think it's ten to twelve going by the numbering on the bottom of the page where m similar argument well counsel the issue is whether a separate coersion claim was raised and it's very clear from the design of this brief that pages twenty four  raises a separate coersion claim that what specific words are you relying on your honor i think the be the core language of those handful of words that i quoted on the bottom of twenty five what this court's precedent is focused on is the constitutional violation and not so much on how the petitioner as a quitter caption make the claim so given the underlying events in the in the st instance court we would argue that mr barrett again proceeding pro se at this point is trying to tell the court that his play was involuntary but relying specifically on one words i'm looking at the bottom of page twenty five dollars and i know rather puzzled because i don't see anything in there about a separate claim of coercion and of course with the concern we all have is whether this was properly presented to the state court and then of course separately presented to our court yes your honor and i think i think it's a couple of things i think that yes those words used to induce the appellate on the next page me talked about the when in the state trial court and that's in appendix h at pages nine to fifteen he's got similar language there that i think is a little bit more expansive when viewed in this context really confirms that if the court and play however dollars constitutional claims and it recognizes that some of those claims had overlapping facts here looking at the federal habeas petition and this is appendix b and i apologize for driving everybody crazy by using the  and so you're saying that i post clips the precedent says that even if you've got the claim that has some other kind of cognate issue and bedded in it that we necessarily on the individual constitutional claims and resolve each one and i think here given the overlap between the coersion claim and the prosecutorial vindictiveness especially where m objected to the r n r he raised his hand and said hey your honor you've got to look at an overview of this i was trying to say it was coerced we think that's enough and so i guess just back to my sort of fundamental question the district court sort of pierced through to the merits in effect of the coercion issue and said you know that it doesn't exist that the i c claim fails because it doesn't exist so you presented it as sort of a we'll call it a hybrid and the measures timothy did here but if you look at the c's right where he does talk a little bit about the recording claim and then separately about the prosecutor of addictiveness we would argue that this court should compare that analysis in cases like lo ponce which from this court which which went into it really goes into in a slightly different way the question of whether the plea was voluntary and in cases like and caricature which talk about how when you've got a rd party who's part of the consideration that's something you've got to take into account i think meditate judge timothy she did look at some aspects of this but she didn't really look at the the total package of  that deals with the colloquy where your client specifically admitted that he was not cool worst and that he in accepting the plea it was his own decision how can we possibly get around that voluntary does not bar of voluntariness challenge and here when it is true certainly that mr barrett ultimately admitted that his plea was not coerced however given the overall context given the heightened baseless capital charges given the recharged charges and given the threats against his brother we would submit that there's enough here for a coercion quim and again that should be sort of went above and beyond either this is what you want to do or it's not nobody's making you do this if you want to go forward that's fine but you're not being made to do this i don't want you to do it if you don't want to do it just say the word i want to be really clear about the voluntarin this play it seems like the district court might have even understood that there might be some confusion here and so kind of double down to make sure that everything was you take into account the unique circumstances of this case with the capital charges and the brother being involved which again not calls which didn't involve capital charges didn't involve time bar charges just involved a threat to indict someone else there the court talked about how great the danger is of a false guilty plea being in right to bring a collateral attack on his initial plea based on ineffective assistance and in response the state did three distinct things it recharges the initial charges despite having conceded in the hay vs proceedings that they were time barred added a small capital charges and three threaten to indict mr ferris brother unless mr barrett took another nolo plate those circumstances were obvious this is not a case where counsel has some duty to investigate where the defendant  know you should have reached out and found somebody those were obvious and counsel should have recognized the circumstances and made a motion to dismiss based on prosecutorial indictive such a motion what a change the outcome of the case substantially in mr investigating officer saying that there was no evidence to support sexual battery under age twelve so none of those cases have got at that aspect of it and nd those cases also don't have the other two aspects where the state is bringing in time bar charges and threatening to charge a rd party unless it gets the plea to the same sentence but it just got so that's why those cases with the independent x don't precisely control independent x i think there it was they had charged him the st time with just the drugs but not the guns afterward by charging with the gun even though they knew about the gun to begin with so even though that was a situation where you might infer prison the victim if the court said no and he and that's a little bit worse situation than this one from a vindictiveness standpoint in the sense that there you've gone all the way through the trial expended all the resources and now we have reason to think that the prosecutor is really mad and is going to take it out on the defendant but the court still says no because there are these underdeveloped the record by accident on the st the st go round part of that was that the defense counsel had reached an agreement with the a usa about the scope of what they were going to argue so that evidence just isn't here the only evidence is in the record here is that there was no probable cause for these capital charges and additionally your honor i think we also have here the element that the state threatened mr barrett before he went through with withdrawing his plea the st time you do this any if you do this we are going to add capital charges and mr barrett went ahead and withdrew his plea anyway and then the state did what it promised to do so again that's another aspect but mr barrett had obvious defenses to multiple charges of possession of child pornography and the charge of possession with intent to promote counsel should have challenged those those charges and there's no reasonable justification for having done so as videotape that under that statute is one article as one mission picture one presentation but as an act there were four separate videos on that tape is that correct four separate events  where there were twenty five photos that were identified as being separate hash values the only case on point here is which says that you can't divide the article into individual units based on what tom and i did my time not revive a claim in the petition their claim in the petition was clearly that of ineffective assistance of counsel for failing to investigate the allegations of capital sexual  battery the point of law that council should have investigated is different and apart from the claim of an affective assistance of counsel and several cases from the circuit has established as principle we did not cite them in the brief i will provide them as self on metal authority and i did give opposing counsel notice that i would rely on those as to issue two there was no valid defense of prosecut case law cited in the brief establishes that simply adding new charges that did not arise from the same content conduct does not necessarily raise a presumption of vindictiveness but if even if it did under these circumstances the state fell on its sword at the reset and saying and said yes we admit that this was outside the statute of limitations and made the same offer as before which was twenty five years in what's your best record cycle where that was analyzed by the by the war court and if you don't think it was analyzed you can tell me that well i haven't considered it from that context your i have two answers to that one it can't be a basis for counsel's ineffectiveness because the case was decided in two thousand and eleven and this plea was taken in two thousand and ten at the time certainly all these other cases where thing and i apologize i'm under a little bit of a disadvantage here i'm working from my home and i don't have access to some things that i might normally have but the other thing is that stole involved very unusual facts and they're not necessarily in this record but if they it was if you were to look in the record if you had looked into the record as apparently counsel was supposed to have done would have seen that it isn't really quite the same in any event save the of pellet court and stowe described that as the parties agreeing that it was a motion videotape a single idea a bit you can put you can have say the english patient and three stooges fast on the same videotape it doesn't mean they're the same but the same motion picture videotape but the case law and we cited crosby chesser and hudson all shows that the crimes are separate the convections under both sides actions is permissible and that was the state of the law when counsel represented mr barret and so there was no double jeopardy defense to be raised and therefore no prejudice and no deficient performance if there are no more questions we ask that you a much weight do you put on do you think you can put on the provision in the plea that way the sort of issues about investigation in particular well that was what  dispositive and you can tell from judge timothy spall reporting recommendation she did not just blanket lay except what the state court had done she regularly says that that or that  that the state judge's findings were not entitled to any kind of consideration that but that they were wrong and yet so she went ahead and made the no vote rulings but she did accept that so that's what i would rely on that or that if if he's fifty or take a plea knowing that it hasn't been investigated i think you're bound by that i don't know of any case law that says otherwise and i'm certain that  if there is such we'll hear about it in the opinion or possibly from opposing counsel and motion notice of supplemental authority ok very well thank you again if there is nothing further from may thank the court for its consideration for putting up with my stumbling around here and we again i ask that you affirm the lower court thank you back down in a posture where the state has just brought its full power to bear threatening mr barrett with capital charges that the circumstance was obvious it didn't require investigation and as to the double jeopardy seventy one is talked in terms of individual articles motion picture off photograph so we submit that again there was no investigation required there for townsell to know that it was worthwhile to make a motion to challenge those and frankly to to result in mr barrett getting a little bit lower sentence again we're not claiming here that mr barrett should have been getting just as of all these charges but post dates the plea but instead just sort of the plain language of the statute which you would say i think later sort of vindicated or confirmed or whatever but but still because it post dates really isn't the horse you're riding  that's right your honor and i think i think so just confirms that and one thing that's really interesting about it if you look at it closely the holding of so and i apologize i'm not familiar with what other extra aspect of it counsel is referring section five now says it has been overruled by statute so that if you have multiple children on one videotape that is multiple counts they have never done that with respect to any of the other aspects of it they've never said you have multiple motion pictures or multiple scenes on a videotape that it's multiple counts so you know that just further confirms that the plain language of the statute is what governs care has to one more question about your  i think is a new argument that you've kind of tried to squeeze into your ineffective assistance double jeopardy argument the start of the c o way issued on ineffective assistance for feta right to raise a double jeopardy claim and now as to intent to distribute you say that you're basically making what i take the a sufficiency of the evidence argument that you know that this you say was an obvious defense but that really in fairness is not before us right  judge choked last issue the c e o way and mentioned the intent from most claim that that brings that brings that sufficiently the evidence issue in even though it's not a double jeopardy argument squad double jeopardy thank you so much mr farris we understand you and your law from undertook this for the court that at our request i don't really know how that happened exactly but we