regarding the ineffective assistance of counsel for failing to challenge the state's rebuttal of mental health expert as laid out in the brief counsel was made aware that the state was going to be calling expert about ten days before the penalty phase was to begin and about three days before the penalty phase was to begin made several most of all he made a motion to continue because he said that he didn't know or had no idea what that expert was going to say he said that he needed time to attend the evaluation of mr tierce with the state's expert he needed time to depose the state experts and to learn what the expert  going to be saying of course he did none of those things he didn't attend the evaluation except to appear just for a few moments and object to the evaluation taking place or counsel h representation was correct well the the thing is judge the the court the circuit court was explicit that said mr you don't have the weekend to effect in florida that allowed the state to present a rebuttal witness in this way but the fact remains he asked for extra time he said he needed the extra time when the judge said no you've got three days you're going to have to work on the weekend he said no you know i'm not going to tell the evaluation and then he didn't do the deposition and then and post conviction he comes back and he rationalizes i didn't do a deposition because i never do discovery because the state is going to learn something about my case he gives a frankly a ridiculous post hoc rationalization for why he didn't do the deposition he didn't say i didn't client not without preparation your honor can't just say i'm not going to do these things and then come back and say well it was my strategy not to do  patently false martel didn't do any report but more importantly trial counsel he made absolutely no effort that we can glean from the  do he testified that he may have called the state attorney and ask the state attorney what martel was going to testified to there were no notes in his file regarding that there was no calls about not doing more to develop a case against martell's position and you don't seriously maintain that he could have obtained those experts them trial in florida within the space of three to four days d well your honor that's that's a good point and i appreciate that the and well how about a good answer yes well no i wouldn't expect him to be able to contact  creators experts as you stated you couldn't you couldn't expect him to get a single expert contact them find out if they were available tell them about the case send them the materials get them to look it  conviction however we didn't get away on the issue of failing to present additional mitigation and that's really nice and will help and because it doesn't fit within the c e o s we've got we can disregard them can that i'm asking you about those three witnesses whose opinions you present in some detail in your brief and my question is they really aren't relevant to our determination about his  left have gotten any of those three to testify could i don't believe he could have gotten any of those three your argument this is this is judge rosen as i understand it primarily that dr martell three stages evaluation on the friday the penalty phase didn't begin until the following monday and then you know there were times during during the penalty phase itself where he could have conducted it yes your honor i think that it's if you go back and you read the cross examination of dr markel it's evident that dr markel ran circles around the street unknown at the well known expert i'm sure the courts aware of him he's very skilled he's very professional although i certainly don't always agree with his opinions to not prepare to not know what this man is going to say when he gets on the stand resulting what happened here which is  made a fool of in front of the jury counsel that this is robert lucky you've had a few times but not do anything and it may be that counsel d was the fishing here i know we have to talk about that but i don't know if you can read the florida supreme court's opinion and the fact that it found to suggest that that nothing was done is i reviewed here and i think judge wilson referred to this earlier and i know you can test the report but at least the data with turned over to his existing asked experts specifically state attorney about the substance of the of the testimony given that you really can't say he did nothing that's a pair your honor he st of all there's no indication there's no evidence other than a very self serving representation that he called the state attorney's office and i'm sure if the state had evidence of that it would have been produced self serving representations all the time or are found to be sufficient evidence i mean but the very nature of testimony by one person on behalf of themselves is self serving i is there that he did nothing your honor there's no evidence that he did anything i can't prove that he did nothing other than to say that there's no deposition there's no report obtained there are no notes in his files the state doesn't have any evidence that i'm aware of that he conducted any sort of interactive tory's or question but more importantly going back to what you asked before about dr lipman yes the florida supreme court relies on dr lippman being advised of the problems of the opinion on what not please remember the doctor lippman is not a psychologist and this was made evidently clear at the hearing or at the penalty phase where the judge actually threatened sanctions against dr levin for testifying outside of his expertise ultimately the doctor limits testimony is using credited by the the sentencing court as i understand  experts including the very expert that we're talking about dr freeman and relayed that testimony as part of his own and that the court found that experts are entitled to rely on other experts and to use that that hearsay and that expertise in formulating their own and it's a very effective to the jury to say well this is all hearsay sure it's admissible but we're talking about a jury here and we're not talking necessarily about the judge's findings we're talking the about the impression this would have had on the jury if the jury sees a doctor outside of his expertise testifying to things that he discussed with another doctor of a different area of expertise how are they supposed to give them any credibility and then when defending to depose it's kind of stop you and ask you about that you're saying that phrase was available long before the three day period we're talking about but i understood you and this i'm talking about ok when did you did find out about montel approximately ten days before the penalty phase began i think it was  phase began on the monday what happened was dr markel was to give his evaluation on the friday as that answer your question no i don't understand the finding of mental retardation is necessary to avoid execution under atkins are you convinced that if you're convicted of murder and you're over eighteen that's the end of the matter and the state court is not required to thereafter engage analysis that's certainly not my position no your honor my position as we laid out is that this isn't about a bright line this isn't about atkins per se or roper per se for h this is about the same reasons that we have atkins and roper apply to mr kias because he mean he's at the precipice of these two thresholds so you know the death penalty has to meet has to have some some purpose be it retribution deterrence none of those factors are met where you have an eighteen year old defendant plus eighty three dollars or eighty four dollars days and you have a defendant his i q is arguably between seventy five dollars eighty cents if if we're going to just apply bright line rules like that as as the court i think noticed and spoke to roper sure they're going to be they're going to be complaints about that but we're not talking about an eighteen year old well functioning well developed individual here we're talking about somebody who's barely eighteen and at the time of the crime was  rest and where would you draw the line now judge i wouldn't draw an arbitrary line i would say that if you are close to a child and you be and your behavioral development is that of a child and you're within three months of being eighteen years old then what is the deterrence factor what is the contribution that was your position but  seems to me that you're at war with the supreme court's holding and roper that i lie and must be drawn what i missed your honor this is not a straight up roper claim this is a claim that says that it's unconstitutional because it doesn't serve any of the purposes outlined in greg for the death penalty to execute someone who because of their age or in supreme court's decision rejecting that very claim contrary to unreasonable application of the holding of either or i believe that it is i contend that the holding of roper in athens is not limited to the mere bright line rules that the holding refers to the necessity that the death penalty as imposed when it's imposed meets the requirements that it's a deterrent is that contrary to our i don't believe that it is your honor the reason i say that is because you know the whole we're not talking about mere dicta here we're talking about i agree with you the quotes that you pull in your briefs are not picked up from those opinions but there's a difference between the reasoning you get to the holding versus the holding you would agree with that yes absolutely and as i understand it we've been very clear that about the application of the holding versus anything supreme court case that is applying a combination of a recently a person was recently turned eighteen along with opinion the say that is just a couple of paragraphs in the opinion and at the end of the opinion and it says he's not mentally retarded is over the age of eighteen and that's the end of the matter in the courts still required to violation under roper or acton's was not an issue in the direct appeal those cases had yet to be decided in post conviction when this was raised in the  case and there's no th amendment violation for application of the death penalty under these circumstances understand that but i guess my concern is that there's a record still required to found that there is no ace amendment violation under either of those cases there is no case set of the u s supreme court that requires that the florida supreme court take into account the mental can at this point to take into account the defendant's mental age or mental condition when assessing the an th amendment challenge under rope convicted for murder and sentenced to death he's a few months past his th birthday and he's almost mentally retarded but he's not mentally retarded just a well under i think there would be a problem with the intent in that in that case and then the problem that probably would have been brought up on direct appeal almost he's almost there but he's not and he's not a minor he's just over the age of eighteen but he runs a red light someone is killed in the accident he's convicted of murder and sentenced to death in the courts in a circumstance like that be required to conduct a proportionality analysis to determine whether or not a death sentence under those circumstances is cruel and unusual will there is still case that combines th prohibited execution of people with mental retardation and then one page later next evening mr kurtz argues that because he was only eighteen years and three months old at the time of the crime and had low level intellectual functioning i do not believe and i believe it's a fair characterization of his arguments and the supreme court addressed those head on and i'm not discussing whether it's correct or not you can talk about that in a nd but the supreme court addressed the correct yes and so as i understand it and we've got me if i'm wrong our question under is whether that the application of that is contrary to or an unreasonable application of the supreme court cases in atkins and correct is talking about the intent there is no supreme court u s supreme court decision addressing these factors and therefore the florida supreme court's decision is not contrary or would hold that the state courts are required to conduct a proportionality analysis proportionality analysis is to look at and actions under these factors therefore when those cases are looked at and it's determined that that the sentence is not contrary to roper acton's that that ends the inquiry and there is a constitutional violation that's the end of the matter if you're over eighteen and you're not mentally retarded that's the end of the matter as far as a part of the to the death penalty yes and he gave that to his expert he prepared his expert and in anticipation of dark the martell's testimony he questioned the experts especially about the m m p i the  whether or not there was a lingering whether or not the defendant was confabulating whether or not there was a conduct disorder and he it is clear from the record that this is judge wilson again mr curse is facing the death penalty and martell is the state's only mental health expert seems like reasonably competent counsel would record in this case file would have at the very least taken this deposition number one that is not a necessary requirement especially when you have t data and you have information as to what the expert would say it is not a reasonable strategy not to try not to try your case before the state attorney hears the case he made a mistake on his his expense report for whatever reason he miscalculated he mis remembered whatever information to the jury in the post conviction dr friedman would not have changed any of his information that was in that report and the same information would have come out then before the jury whether it was dr friedman in person or  friedman via the information dr lipman relied upon bottom line is there was nothing in the evidentiary hearing that would have changed the information that was actually you with regard to dr lipman giving the information to the jury that dr friedman would have given the state taking a disc different position today than they took at the trial where they told the jury don't believe dr lipman because he's talking about what some other doctor told him now the state seems to think that that's fine that's not what they told the jury in this case they went to extreme lengths in closing argument as well as in the i want to just go back briefly to the cross examination of dr martell the state says well you know you don't have to pretrial your case in front of the state attorney if you read that cross examination that to me i'm not a trial lawyer i will admit but that to me reads like a deposition of the state's expert he's conducting a deposition a discovery deposition in front of the jury it's clear they're the st ten pages is what about your opinion would have changed if you didn't have some information trying to cover for the information he didn't provide to his own experts but then he goes into asking questions where it's clear he does result while they have to operate under the laws that they are and the rules that they operate under judge in florida if you're given the opportunity to conduct discovery and you choose not to do it that falls below an i'm not pardoned alabama on the part of any other state i can say that i would assume that those states have some measure by which trial counsel in a death penalty case can conduct some form of discovery either by obtaining a report during a deposition perhaps moving to do a deposition and having that granted by the court which you dell did in this case and the court ordered him to do it and he didn't do it so i don't see that really as far to the argument and again in florida you have a right to do that the deposition the standard in the community in florida for determining what is reasonable tourney performance w deposed the state's expert at least obtain a written report don't go into trial with state expert who's well known and well respected although controversial but respected in that he's very professional and he's very good in front of a jury you don't just go in blindly and start conducting your discovery in front of the jury which y shown things that he could have done this differently the the most important one would be he could have presented dr friedman to rebut martell's testimony rather than going about it the way he did  men not only incredible with regard to areas outside of x his expertise but discrediting his opinion altogether but i understand you don't take it you don't  and ten days thirteen days before the penalty phase actually began  again i would ask the court please reread what what i consider to be a discovery deposition conducted in front of the jury i don't again i'm not a trial lawyer and but i just don't see how that is is reasonable in any and in any circumstances also to the extent that the florida supreme court relied on mr hugh dell's testimony and his billing for the state to say that he made a mistake on his billing i think is  still a member of the florida bar no sir and that's what i was getting at he was subsequently disbarred for filing false fee affidavits and you know that you have to thank you incidentally he was also  found to be ineffective in several other cases not only in california but in florida as well and i believe that's all in the record as well but do you think that prior bad acts that we are concerned