are here for a hearing on the case of antonio melton versus the attorney general the sight of florida i know we have experience counsel so i won't explain the stoplights system to you i will be legislature this one at ten o'clock and he asked her to be there with them and so that was the reason for the delay so i thank you all thank you very much less good afternoon it please the court linda mcdermott on behalf of antonio melton  we're here on the ineffective assistance of counsel claim and i want to start by just setting out the context of the case terry trout who was the chief assistant public defender at the time of this case in then was a judge at the time he testified in post conviction he was faced with a case where his client had been charged with a homicide twenty six days after he turned eighteen shortly thereafter his client was charged with a second homicide that occurred prior to that case when his client was seventeen in that context he knew that the state was going to be trying to use the first homicide as an aggravator in the capital case in the capital case there was only one arguably one aggravating circumstances that he was aware the state could establish which was the culinary game  aggravator so the state obviously wanted to get this conviction so that they could then use it in a capital case so this is where he is he is sort of focused when he's preparing the sailor case which is the nine capital case the cab driver case now they're going to go to trial first on the sailor case and so he's investigating obviously both cases simultaneously and there's certainly overlap codefendant who in the capital case is also someone who's given information and was allegedly were mr melton on the day of the cab case so this is where he is this is where the context of the cases and so in terms of what he knows and what he does he learns that ben lewis who's the codefendant in the capital case has provided information to law enforcement that antonio melton let me interrupt you but i suspect we all know the facts pretty well on that i'd like to focus you on what's the key question here which is as you well know from your experience that an effective assistance of counsel and and effective performance it's a very high hurdle that we presume that in turn he has acted within the broad range of professional co and when you combine that high hurdle with the deference that we give to a deeper view from the state court we're doubly deferential and so it's an even higher hill for you to climb with that in mind and that burden let me ask you what in all of the things you've written in your brief what would you identify as the most egregious error on mission you think defense council made it's so judge pirro he learned that  ben lewis had made statements in the deposition of detective o'neill detective o'neill says i obtained statements from bruce frazier that lewis was talking in the jail cell he then reveals detective o'neil reveals that according to david summerlin as he's identified we learned later his name is david sawmiller that lewis has made the statement that he and his partner and o'neal specifically says in the deposition i clarified that and he did not identify melton killed the car you're going with this my questions first let's figure out what we're talking about signing it is you're saying that he should have interviewed someone that  omission all right and so he knew those things according to the courts that have reviewed this case he knew those things and if you find out that the ben lewis is talking in the jail cell he's not just talking about the sailor case he's talking about the capital case it is incumbent on attorney to go find out what is louis saying what is he saying about both cases or is he only generally unproductive but from frazier he knew that frazier said that lewis said that melton was the shooter your client was the shooter and then you have the reference from somewhere saying that lewis said the partner his partner was the shooter you don't think that terrelle defense counsel could reasonably infer from map that melton was the partner given the fact that melton was the partner with lewis and the pawnshop robbery well that would be essentially i mean i think i think what to relf says is i should have gone and talked to him i should have clarified who was he talking about now the court in the state you know want to argue that that's hindsight but at the end of the da to try to admit lots of little things he should have done in the hearing in the judge's task was not his on hindsight whether objective really looking at it to rule i made a mistake not what correct fessed up to later on twenty years later ok but what the what the trial court ignored in the district court was that terrelle said i had no strategic or tactical reason not to go interview those witnesses now the the trial court tries to impose a reason saying well he according to o'neil lewis was giving statements that might have inculpated as client but why wouldn't he have wanted to even know that that's going to be used in a capital case against your client you want to know what is appealing said by the codefendant you want to know what potential evidence is out there that could come in either or both of those cases so that is where he was deficient what do you think what your response to the argument that defense counsel doesn't have a responsibility to go talk in a random people in a jail i have no dispute with that if this was not the case the context of this case this case by case analysis that strictly stricklin requires under these facts he had every obligation to go and find somewhere he had his date of birth he had his cell number to go find him find out what louis was saying and find out what the other people in the pod because he knew louis is talking so from there he could have found additional witnesses the way post conviction counsel found that but they knew the identity of some lawyer so you're saying he should have at least up to somewhere absolutely in the thing about it is he went to talk to frazier but he didn't go talk to someone which doesn't make sense because the note and the clarification o'neil gives during the deposition makes it clear that some lawyer is actually potentially a more helpful witness he says it wasn't now he didn't specifically say mountain he said partner so enter all that that would be important to go in clarify that information and determine what exactly was being said who is being implicated in what we by this point well let me ask you this  assume for the for the sake of argument that that we might say that was deficient performance you still have a problem with prejudice because the question is what is the likelihood when the trail goes to see some or some  lawyer is going to say hey louis did it and i would think you got nothing on that because he told o'neill that the partner did it on not lewis and he also said  never testified against lewis so what would be the likelihood that with defense counsel want to talk to him that he would then go back on that story well he he said that i mean when when someone was finally interviewed he said that lewis said that my partner and i were there and he didn't say a mountain and then he indicated that it says in the notes but it's way down at the bottom he wouldn't testify against lewis but lewis wasn't on trial for that crime so to go to some lawyer as an attorney for melton and say no one's asking you to testify against lewis you're coming in to explain to mountains sure what you heard and he did in fact come in and he said i don't recall even saying that back then but you know maybe i did but certainly there would be ways you could then subpoena him you could then ask o'neil what did some lawyer tell you because you could do what they did and what caught on a valid very dangerous unless he gets an admission with his word and some many degrees of speculation now unless he gets an admission from sambal or when he goes to talk to him that oh partner he didn't sign off he said and not melt and he said houston he specified partner by itself of that's all you get is very dangerous because then the next question is what does partner mean and that arguably opens the door for the prosecution said well who could part what the partner mean the only time we know of a partner's the pawnshop property and absolutely he wouldn't want to get into that so it seems to me your arguments quite speculative that we'd ever get to the point you're arguing would have gotten to had he interviewed the witness well but except for the fact that some lawyer tells postcondition counsel it wasn't mehlman it was houston and lewis and the state court who we have to defer to found him to be not proud of that was as to the newly discovered evidence claim under porter versus mccollum we're not talking about credibility we're talking about what would the jury have gotten from those witnesses that were presented in post conviction about all the inconsistency and of course he indicated he'd never testify against lewis and you get a trial that would essentially be testifying against lewis to contradict him on something you didn't indicate that in his testimony but the judge found not to be cr as to the newly discovered evidence this is what the state the respondent has done they've conflated these claims a newly discovered evidence it is a forward looking claim what would happen if at a future trial that is legitimate to look at the credibility of a witness but when you're looking at a backwards analysis as in strickland or brady like in coyote's we're seeing what would the evidence have done for the jury at the trial that they've heard they've heard information about louis and about houston and then you can judge who is more than that he said they didn't come forward they didn't come for for ten years twelve years whatever i view his credibility finding i not even credible necessarily bet he would have said this story had he been called to a trial that it was an eye all of the end mate said they had told nobody this story until two weeks before the hearing and so the judge it seemed to me roundly rejected him in every way you can reject a witness on credibility grounds only as to the newly discovered evidence claim that would be important that does not apply in a strickland analysis when we're looking at a backward looking analysis as to how does this impact the trial that actually was heard in the defense that was actually presented i see that i'm running out of time i mean shouldn't i gather question where you sit down how do you counter the state's point that you failed to show deficient performance because testify at the evidence or hearing or because judge charles said i was responsible for all of the strategic and tactical the decisions i was the lead counsel of the case therefore he obviously in order to make those decisions if somebody did talk to him and he didn't find out about that information then they that would be similarly problematic but the state didn't present paul paul wasn't presented to roll made it clear this was my case i made the decisions i directed the investigation and you know from what he did he was the one who want to talk to frazier and those sort of things so i don't think there's any defect in the evidence that this is what this is what he was trying to do a trial and this is the the efforts he made and we know what he didn't do and he said i didn't do those things i should have done those things and i didn't do them for any particular strategic or tactical decision if i can reserve the rest please the court desist and attorney general charmaine millsaps for responding i'd like to first talked about i think not calling co counsel hall does matter i absolutely judge trail testified that he was head of strategic decisions he was sleep counsel but this is a claim of failure to investigate we have absolutely no no no evidence that hollow didn't talk to these people or an investigator what's what's more is is not only could a hall of gone around and talked to all these people there is some record evidence suggesting that's exactly what happened because inmate harris said somebody came to test it from the p d s office quote unquote and he refused to talk to him so we know the investigation was wider than just what that the investigation was broader than what then just what to roll testified he did we know that from inmate harris several of these inmates but harris is the one who specifically said someone from s office now that could have been co counsel hall or it could have been one of the p d s investigators but there is record evidence on this record that the scope of the investigation was broader i'd also like now it's a first step to something but courts should not be doing failure to investigate if it has to lead somewhere i'm not saying you can't it's not a precursor but you can't acknowledge that the supreme court has articulated a duty to investigate absolutely i'm just saying it has to lead somewhere ok it you you have to lead to admissible evidence and the reason i'm pointing out that differen is i don't believe these inmates are admissible i don't believe that the state courts are going to allow you to present as a defense witness remember it's houston in this case is she used to that's the state's witness why he did not call been lois ben lewis was called as a defense witness so you would have to have a trial in which a defense witness you would allow multiple people to come to  peach a defense witness ok so i don't think you can do this i don't think there's any admissible evidence that is my point because you cite in your brief about about the evidence came after me at mr mountains trial in one thousand nine hundred two is that right yes you know the time of his trial the florida rule of evidence ninety point six zero eight permitted any person including the party calling a witness to attack the credibility of a witness i believe you can attack the credibility of your own weight yes i'm not saying he can't be impeached but not with the extrinsic evidence we're not going to have a trial within a trial about a defense  witness of course and lewis was impeached he was massively impeached but i don't believe they're going to allow you to call extra witnesses to impeach your own witness ok it's not that you don't get to impeach  witness that did happen louis was impeached numerous different ways with his lying about it now abide with his sworn testimony of the state attorney's with his counsel got open admissions that he lied again and again and again are so yes you can impeach your own witness and that happened i do not believe you can call other people to impeach your own witness  right before you move on i just want to make sure we are on the same page about this so maher reading of the state court order does not address prejudice to him are right about that i mean do you that if the trial judge doesn't believe him why why would the why would the jury assuming you'd be allowed to do this of course but why would why would a jury believe these inmates who have multiple conviction reasons why and a jury we would impeach these witness with the exact same thing that we that the trial court found that they didn't come forward themselves that it was years later look let me just try this again so taken aback so on terrorism effective death penalty act standards and if the state court didn't address it then it would be dunno vo if we do address it oh i don't believe that's true and here's why  both a deficient performance and a no prejudice argument so i don't think it is not under that situation and now your honor would like to point out the mistake of my brief on page fifty five that said lewis was called at another evidentiary hearing regarding the carver capital case i was actually referring to the evidence or hearing and that in this case the sailor case it was the two thousand and two thousand and fourteen lewis reaffirmed his testimony in yet a third evidentiary hearing which gets me to counsel's main point she says the problem the fundamental problem that the state courts made was they didn't consider the totality of the evidence the evidence at trial plus the evidence from post conviction i do not believe that strickland strickland puts coun in the place where he was at the time of the tara what people come forward later who say they would not talk to you at the time or are newly discovered  evidence claims evidence from newly discovered evidence cannot be considered you must look at what counsel's position was at the time of trial now can you consider what he should  yes of course you can't i'm not saying that don what i'm saying is for instance some lurch changed his testimony some lawyers what statement before trial which is what counsel i asked was his partner partner that lewis told him his partner shot the taxi cab driver admittedly partner is ambiguous it could be either houston or melton the reason i think it's more likely first of all frazier who you do talk to says mountain was the shooter that doesn't help you a bit and then you get written reports from the detective saying saying another inmate is saying that lewis says his partner shot the taxicab driver that doesn't help you either why would you go forward when the two pieces the evidence you have are that looped lewis the state is not going to cut it does not call as a witness is telling other people that your client's the one who did it i don't think you go why would you go further and investigate other other inmates from that i don't think that there's no red flag here  i disagree with there being a red flag the two inmates one of whom you talk to one of whom you have notes about and by you i mean specifically to route i don't even think that was bad for him not to go forward but we don't know that they didn't go for it you have to have hall or in the investigators of us on comment on them it's their burden to bring this person who is doing the investigating and indicate that he did not you don't have to prove a negative i don't have to prove a negative and remember your honor in this particular case this was really a surprise claim at the evidentiary hearing this this regarding these inmates this was  did not allow him to do it this was a last minute claim and the burden your honor that's not just empty language the burden is seriously they've always put the burden to overturn a valid conviction you have the burden both of deficient performance and prejudice but what's worse in this case your honor this is more than speculation you could be reversing when some of the evidence in this hints that the investigation was in fact wider than either frazier or someone we know that harris was talked to by somebody bowed to p d by his own testimony and refused to talk to them so you have hints in this record harris because he specifically said petey i don't know who someone would be other than the p d p his statements is much more ambiguous yana but yes he did say that somebody came to talk to him and he was worried about his his own issues and that's true of burke's as well and brooks burke's wasn't even in this at the time of trial adrian book brooks yes everybody knew about him because lewis had tried to get him to help form an alibi but his later statements about what houston told him before he die council has that conversation didn't even occur before trial couldn't have possibly found it so a lot of this evidence is stuff that there's no way she relies mainly on byrd adrian brooks and the girlfriend and that's equally true of the girlfriend do what counsel spacing is the girlfriend's testimony at top not what she said later you cannot correctly classify that as a recantation she just says she doesn't have any independent regulation but i don't care what it was facing at the time of top with the expanded thing of what he should've not but what what the girlfriend testified at trial was all three of them were at her apartment and she walked out on a rock in a and saw all three of them walking toward the six and they called a cab to come pick them up that's where the spacing and that's what ineffectiveness must be premised on you cannot win when witnesses years after the trial changed their testimony and there is nothing there to hint that counsel could have gotten to that then that that evidence may not be considered ok so really like to just agree you have to consider the two cases together counsel did a wonderful job at the penalty phase of using the fact that this was a conviction i mean a very likely one and then i think there's no prejudice both because they are not  credible and and lewis was in fact impeached if there are no questions from the panel thank you very much for your time and we ask that you affirm the district court's denial and the state courts to now post conviction relief well just to address a couple of things harris was a witness in that he had statements from lowest related to the capital case and i do want to point out that we keep saying that hall didn't testify but some  testified me said no one ever came in saw me other than detective o'neil who i gave my statement to i assumed he would give that to whoever he needed to so there is evidence in this record from these witnesses that no one came and spoke to them but other than again i've got to beat a dead horse the the court found somewhere in the others to be incredible forget what and what analysis or what you know claim it is he found them not to be cr  the analysis was correct that would be a unreasonable application of strickland because strickland doesn't look at an issue like that in porter the court found that porter's evidence lack credibility it could have been impeached it wasn't you know it wasn't sufficient to get him a new penalty phase and what the u s supreme court said is no you cannot discount the evidence you have to consider what impact it would have made on the jury you have to think about how would the defense have used that so when you look at khaosan or you look at chambers in those cases there's plenty of evidence against the defendant's chambers and that the defendant and the person who comes forward and give statements or does things that seem suspicious beenie and kyle's and mcdonald in chambers you get to put on the evidence about them in various ways from their inconsistent statements and things that they've done and told people and there's no preclusion to that because this is part of melton's defense just like it was part of their defense to show the motive for how they got into this crime that they adamantly say i wasn't involved in and then so that would be the analysis is what could the attorney have done with this evidence we're not going to get into of course it could have been impeached they had convictions so did louis in houston they were facing the death penalty and yet we're standing here saying that somebody who had a robbery charge hanging over his head can't be found credible and these guys were facing the death penalty and they got up there and they pointed the finger at mountain and they had all these inconsistent statements between them they had melton they had them meeting up at different places they had them  you know melton leaving the house of mims house in the evening to dispose of the the gun in the bag from the from mr saylor they had all sorts of in consistencies so that's why we have to look at what the jury heard what this evidence would have done at the time of the trial and if you look at what the jury knew mims marsh dot binns dobbins and everybody says the crime happened friday or one day before they read the newspaper article which was sunday but what we know is that this crime happened saturday and we know that houston and melton and louis were talking about going to a club the night they were together but they they even asked dobbins ant can you take us to the club there's no explanation for why supposedly they changed gears and decided that they were going to commit a robbery so i would ask the court to look at the evidence that was presented in post conviction under the analysis that's appropriate to strickland and i would ask the court find that counsel was unreasonable in his investigation and that the state