that the district court was going to be entering summary judgment against them how they know that they knew that because this court had directed the district court to do that after a collateral heal in that time after th dish this court directive the district court to enter summary judgment there was a little more than a month the plaintiffs had briefed for this court an alternative theory for relief but it was implied in their complaint which they'd say a few be dealing with the jurisdictional issues that we're doing right now i'm dealing with the fifty nine easy issue regarding interpretation of that rule i would have to address the jurisdictional well issue also your honor we sent a letter that asked you to deal with that we received letters but go ahead i was i was just going to make the point that there has been abuse of discretion ruling by this court in similar circumstances before and overturning this record in terms of jurisdiction our position is i say in our letter brief your honor that there is jurisdiction we would respectfully request that the court follow the six circuit and i believe also the seventh circuit that would be the howard and the current cases and that there is there's multiple reasons why there would be jurisdiction in this case the fifty nine you know to be argued that there's actually a new i mean this fifty nine even motion that doesn't constitute a new claim as it were i think it's fair to say that some of the this is something that happened the rule at fifty nine emotion occurred within ten days or so after the district court enter judgment so we're not having something extending out like the nine months in the gonzales case and in the united states supreme court it's very different from that and they're very different considerations from sixty six and fifty nine in that regard your papers have a slight confusion in your papers you mention about rule fifteen and to amend i read your rule fifty nine papers as seeking discovery with the eye toward possibly and mending at some point it at points in your brief it seemed like you would were representing that it was really a motion to amend we which is it's i think it's fair to call both your honor and we would ask that it would be liberally construed as such and we have brief that point in our in our brief that's what happened in the gould case while it was both a fifty nine even a rule fifteen motion two to amend in the in the rule case but getting back to jurisdictional argument if i may your honor this case is different from howard and williams and all the other cases that i've seen cited in that mr blystone got he got really so if it's different in that in the other cases there was relief than i it's true that it's a way to distinguish it but analytically why is that important walt's important because if this court were to send this case back to the district court and reverse the grant of penalty phase relief then judgment obviously would have been open for the entire time and it would not be something that would be  in that respect so that's that's we think that's an important distinction that every would be relevant discovery would be relevant this is a matter that needed to be discovery would be relevant to the penalty phase your honor yes we believe that certainly if there is evidence that we have some indication the record that there was not a robbery or that there was not a robbery as alleged by the commonwealth that is relevant to mr blystone sentencing if there is further evidence and again we have that in the we've set some of that forth in our petition that there was evidence of intoxication to the extent of voluntary intoxication that's absolutely relevant to both the first degree homicide conviction and phase as a core i'm sure as well aware matters going to the offense matters going through the character of the defendant matters going to his background are all mitigating so it's our position that this coverage would be relevant both to the robbery which was the sole aggravator to the first degree homicide conviction and also to the penalty phase and in terms of that mr powell stated in terms of intoxication that he told us that space they police they were intoxicated and while the state police report in this case documenting his statement says that mr pal told them that they went and bought liquor and went to a party it does not mention intoxication this all came to light because of the month wasn't disclosed they went on said it's not material but that for our purposes doesn't change the fact that that's what they said and the p c arik work i'm sorry your honor blystone had a chance during the trial the initial trial to say counsel this portion of this police report is inaccurate is in redacted i don't know if he's determined that is or has been changed has left things out and he didn't do that now he is the one who would know if police report was the accurate or not and if he saw inaccuracy wasn't it is responsibility at that point to say something about  your honor i think it would be not necessarily his responsibility to say that it's counsel's obligation to go and follow up and but even more importantly it's the cowell solve of haitian that's on duty going duty to disclose expected to abide by its obligations i didn't even discuss that piece in the original p c or a court this than a month since he was found many many many brady violations by these prosecutors so this is something where  the trial lawyer who is a very new trial or only a few months of experience and relied on the police reports he doesn't know what's not there it's something where we finally in october of two thousand and four mr boston is put on notice that there are serious problems with the way this is going on with with the way discovery is produced in this county by these prosecutors and also then he goes and talks to the lead investigator and lead investigator says and he didn't say this in two thousand and one lead investigator for gave a first affidavit in this case only in two thousand and four of the say yes these reports have been altered they've been changed i'm not going to tell you the extent to which they are because i'm concerned about my my my parole you know a lot of the a lot of the your adversary's argument is hey you know what even assuming all that you waited too long and that's what they say i mean how do you respond to that did seem that most i mean did you need every single piece of evidence to bring bring a claim i mean i don't think the lower counts that why why didn't you bring it earlier why didn't we bring it earlier than april of two thousand after the after the judgment in the i just record case after the judgment in the ongoing obligations which it hasn't met given the length of time of the statute of limitations for newly discovered evidence which is one year under point two forty forty that is not untimely just because a one count about something within the statute of limitations is not an pylea and also i would submit that the adams versus pooling case is on point to show that you know just because somebody know the judgments coming down the pike doesn't mean that they're too late when they file motion under fifty ninety  that's my time your honor ok thank you thank you very much good afternoon your honors i'm over him i'm going to be discussing the the ineffectiveness issue in this case as your honour's are aware this is a case in which the district court granted relief partly on the ineffectiveness claim and denied relief partly on the in effect in this claim just to set set this up this is a remarkable in fact in this case in fact it's one that can never happen again in pennsylvania after this case went through and post conviction pennsylvania supreme court adopted rule eight zero one which makes it so that no lawyer with this little experience this little training in this little knowledge about death penalty law could ever handle a capital trial and also but the background is that jeffrey white co eighty three roughly three and a half months after he had joined the office he was a part time public defender there were five public defenders in the office all of whom were senior to mr white co and yet the fayette county just public defenders office put him in the untenable situation of having just three and a half months experience no homicide trial certainly no capital trial and all of a sudden mr blystone his life was in his hands he had tried only six jury trials at that time as i said never capital case never murder case and he tried the case alone which is astonishing without second cher or co counsel the public defender the g public defender sensibly i was available to the system but did he was there soley at the time of the preliminary hearing and showed up for one day at the board here now we raised the claim that this is constructive denial of coun that's not the issue that's before the court the issues before the court is whether counsel is ineffective and one of the key issues is what was house understanding of mitigation because there is a waiver that we can't you know pretend didn't occur  question is what is the extent of the waiver what was the advice from counsel to mr blystone concerning that waiver and in understanding what that it vice was it's critically important to understand what mr white pose knowledge of mitigation was and what he is predicate investigation is because in all the cases that are out there there is nothing that sad is that you can excuse or insulate from ineffectiveness review predicate failure to investigate  just leave that thing alone at that point is the attorney the defendant's attorney under any obligation still to do and that's the background investigation for the penalty certainly certainly but but your honor i would say the record  never attended any capital seminars he had no specific training on death penalty law and he had no reason or says of any kind to meaningfully investigate mitigating evidence even if you understood what it was case where there were similarly horrific conduct by the by the public defender's office stipulating the presence of facts that led to aggravation and failing to present any mitigating evidence the one where he could go to his lawyer who was involved in  that and this lake oconee and if you look at just such and since the sentence just as nick says dissent talks about how there was a complete failure of the fayette county public defender's office to prepare and in fact when they came before the pennsylvania supreme court they had no wonder standing of controlling us supreme court law the only people that mr white go could go to were the very lawyer what was the very lawyer that the pennsylvania supreme court at the same time was saying had no knowledge of death penalty law and hadn't even bother an investigator and interestingly the pennsylvania supreme court seizes on this is saying that there is a reasonable investigation but it's completely false he testifies he had access to the investigator about the investigator was only for and no other lawyers help with the preparation of the case from from the outside with experience the only one was the chief p d and we already talked about the problems that he had so if that's the background in which jeffrey w goes about conducting or not conducting mitigation investigation and in fact is an abject failure to investigate the record is absolutely clear what it is that white co actually did his testimony is that he interviewed scott lies down the interviewed scott's father scott's mother and wrote his one sister whose name that white folk would not recall and in fact scott lesson has three sisters was even wrong about his one sister and he did not talk to anyone outside of the immediate family his testimony on eleven sixty of the record a limp we six of the record the only the one sister was the one who was always with his mother at trial making clear and corroborat sister's testimony and she was never interviewed by him at all there was an offhand conversation in the hallway of the district court so found in fact the record establishes that he did not ask for names addresses or phone numbers of friends and he didn't talk to friends he did not recall asking for names of other relatives and he didn't talk to other relatives he did not recall seeking records he did not obtain the navy records he did not obtain despite the fact he testified he knew from talking with scott that scott had been he did not obtain the maryland department of corrections records despite knowing that scott had been incarcerated despite the fact the parole eligibility had been part of the testimony during the guilt phase of trial and those records screamed out with mitigating evidence but he never bothered never bothered even to look at it he didn't seek school records or medical records and no one in his office personally consulted with a psychiatrist or psychologist to see if there's any mental health mitigating evidence so this is someone who is not prepared to investigate did not have resources to investigate and indeed when it came to the question of mental health investigation what he said was that he did not have access to a defense expert on that he said the mr lapore control the purse strings and that there was no access what happened in court the court is able to to appoint a mental health expert right absolutely yeah absolutely and what mr white go did was he operate under a complete misunderstanding of not just controlling death penalty law but misunderstanding of mental health because scott lesson was sent for a competency evaluation which is a very matter and all the mental health experts in this case testified about the difference between a competency evaluation versus an evaluation for affirmative defenses the first degree versus the mitigation investigation and they clearly i was uncontroverted that the mitigation i'm sorry that the competency evaluation here was nothing like a mitigation investigation not only was it not a defense investigation where there be some privacy and you could  t within the bounds of privilege to ascertain whether there was something was mitigating it was court appointed it went to the court it went to the prosecution and despite that and it didn't it didn't cover his background  history and they didn't have any of the records they didn't have any of the information from the family members about things that might be significant and despite that according to the doctors who testified uncontroverted by anything the commonwealth on there were red flags of mental health mitigation on there and there were red flags that were different from even counsel's limited misunderstanding of what mitigation could have been presented from his family so it's a horrible varies you've got a very complete job explaining that part of it but still we get to the elephant the room if you will is what happened actually trial and whether prejudice can be established under strickland could use did you turn to that sure and i mean you've got you've got testimony i mean context because in landrigan united states supreme court says in the constellation of refusals to have mitigating evidence presented this case is surely a bright star no other case could illuminated state of the client's mind and nature of counsel dilemma quite as i want you begging if i'm found guilty you know that's it yes but and the but is is extremely important and the but by the way is controlled by this court's decision the one decision has so far on on land again that's the brian thomas case yes he did but it's clear the context in which that occurred and the context is so very different from many of the cases in which that kind of waiver has been said to waive the the investigation of other mitigating evidence if i can step back for seconds to to talk about land and then i'll get actively interfere and when it got to the stage in the penalty phase when the council was to present mitigating evidence of the court conducted a colloquy not of landrigan but of a lawyer to ascertain testify then counsel goes beyond that just says well you know there also is evidence that he was he a good provider and landrigan interrupts and says if i wanted that to have been presented i would allow the witnesses to come in and then he said and in that you know a prior homicide case and defense counsel is going to say well there's an element of self defense and landrigan interruption says no there wasn't i just stabbed the guy and then there was another prison episode and counsel tried to say well there are some self defense involved in lip and then he says bring it on i mean it's absolutely clear that landrigan is sabotaging affirmatively stopping anything from taking place and then another absolutely critical distinction for purposes of proving prejudice the evidence that led her against counsel soft introduce in the post conviction proceedings in the language of the united states supreme court simply overlapped with the exception of one alleged mitigating fact which was on presented evidence that he had a genetic propensity to violence which the court dismissed as being a minimal mitigation value especially in the context of someone who had just bragged to the fact finder about his violence so of course there was no prejudice he had been told with specificity a full range of mitigation and he had affirmatively rebutted or sabotaged or disclaim every single aspect of the case and they had nothing new to mitigation and this court said was not supported by the record although thomas have said that under no conditions did he want to take the stand he agreed with the court when the court said i would like to repeat it's your decision not to take the stand are the this was historical fact found by the found found by the pennsylvania supreme court and it was just was not supported by the record for the same reason that is not supported by the record here thomas never indicated that he would interfere no this court said does not mean that he had effect that had effective counsel prepared mental health evidence he would also have declined that presentation therefore we cannot conclude that the conduct of the sensing eliminate all possibility of performance cost and prejudice case you know this case i would argue is even clearer then thomas and the reason is even clearer is because we know with specificity what it was that counsel actually advised blystone on any mental health he couldn't have advised on extreme mental or emotional disturbance or significant impairment because he hadn't investigate anything on that and you know what he could conceivably have advised on was the language in the mitigating statute because he said that he had gone over that with mr blossom but this is a lawyer who's practicing law three and a half months and doesn't understand how many law and there is a flaw in the language of pennsylvania's death penalty statute the only reason it's constitutional is because of the construction of the eate catchall mitigating circumstance the pennsylvania catchall mitigator says any other  the character or record of the defendant or the circumstances of the offense he says nothing about background and so counsel who knows nothing and who you know when he was asked about family background said well you know what we're talking about is scott we get frustrated things and so we put on dad to talk about how when he couldn't do something he got frustrated i mean that was that was the extent of what he understood to be about i mean again your points out look he said i don't isn't that pretty straightforward i mean we can't mix up you know there's cause and prejudice you know let's just talk about prejudice i think no i think i think it's pretty clear that there is a waiver of something and the record supports that and what the record supports is because the context is so clear if supports a waiver of what he was advised about and it's also pretty clear what he was advised about because at trial on the record at nine sixty seven your honor after a lengthy discussion with mr blystone he states that he wishes offer no evidence i've talked with parents and interviewed them on several occasions and i wish to put them on the stand and i wish to put mr lawson on the right so it's clear it's you know it's the parents and then the question of the two suppl don't you wish to testify or have your parents testify i have no testimony and no witnesses so you know if it easily falls it easily falls within thomas and then mr white though says i tried to explain to him that i wish for him to take the stand or his parents so it's absolutely clear at that time and then in the post verdict hearings it becomes even clear and even the commonwealth buys this because it's the one who brings this up at the time of the sentencing portion of the trial did you not advise mr blystone to testify on his own behalf mr white mr white go says i advised him either to testify or let me call his parents and he did not wish to testify or of parents testifying right and that is i believe at ten eighty seven and then ten it temporally four thirty five blystone testifies about what his explanation his understanding was he did tell me that i should take the stand in the sensing phase between life and death and that i should call my parents and at that point he explained how he would be hopeless to put the parents on i thought to get up  everything was said and try to convince the jurors there my life i didn't think would do much good as far as my parents go they went through six or eight months of this with me before the trial and they broke down a lot and they cried and it hurt them and their name was involved every time my name was in the paper it reflected on them my mother lost her job because of meat my father was nearly fired because of me and i didn't want their name in there i didn't want them on the stand to break down i thought would make things worse and would hurt me more if my parents got a cure and broken down and cried he did want me to take a stand before sentencing and my parents but i didn't want to there's no question no question that when he says he doesn't want anyone else brought into it this is who he's talking about he's talking about his parents and the district court was absolutely correct when it found that there's nothing in the record support that he would not have allowed any mental health evaluation or so forth in fact the maybe reports as he was cooperative with the mental health there is absolutely nothing to contradict what the district this report it's supported by the record when the district court says that this is overwhelmingly prejudicial in fact even the commonwealth hasn't spewed that you know i mean we're talking about a range of mitigating evidence that  powerful uncontested evidence of brain damage and you know the idea that a person's got brain damage would somehow waive it without knowing about it or having anyone explain to him what it's mitigating failure was someone was bipolar disorder you know which you don't  purpose of the here but the question for the district court that that's quite simply the question of the fifty nine emotion and that depends i think if the court said in its letter to her and how you did you consider the type what the motion was with a genuine fifty nine emotion or was it something else and in this case we say it was something else it was effectively an attempt at a new petition a second  that's ok true that to me that is a very odd argument because again it looks to me like it's for lack of a better term some kind of transient finality argument that argue it's not final if you've got no relief in the matter another court and that's the point we wanted to make your and we think that we've laid it out in detail in our paper i'm not going to repeat it now but we think it's a very good argument that the the fifth circuit approach here which creates most of the other circuits is the right approach that has the right to evaluate and make a judgment call on the judgment call and this was certainly within well within the parameters of the district court's discretion they gave the district mikey very good reason why this would not be appropriate is and that  nothing more than a while the attempt of guilt by association or culpability by association there is no support in this record for for any for any genuine basis to do this and that's what the district court said and i and i believe that's correct we laid out those reasons in our in our papers and i believe that there's a reason to change our position on this we in fact would reaffirm it that the material that the district looked at evaluated and  differential position and you have to search out what theories or bases there could possibly be for the ruling of the state court to identify if there's any possible reiterate this is a very high standard federal heebie as you precludes really oh yes there is unless you can meet the standard that you have to first determine whether or not there was a reasonable basis  it would conflict could be inconsistent with controlling supreme court precedent and under that in house you there is no way really should be granted situation given what transpired here and focus on what exist was taking place the council's conduct here wasn't within the wide range of a professional acceptable behavior if he had as he acknowledged an obligation to prepare for the death penalty phase three or her mitigation record show you don't more than that i mean they point out look they're all there are all kinds of things around to give you reasonable notice that there was something to look at all those different these navy records and all things they point out well that that that that posted what happened and that's the o people's names of people i met in here are you saying that the standards you're irrelevant and no i didn't say that you're right i said that they can be decided but they are not they are not written in stone in terms of measuring council was yes he had a relatively short time as a trial where comparatively speaking but just because he did it doesn't mean he was inept or incompetent and he had a year or years experience or two so he he had seen things happening he observed so he had a background he had tried six jury trial so what this wasn't literally his first case but even but everyone has to start somewhere and the question that we need to  strategy about what he was going to do if there was a penalty phase and then when it comes time to the county face he not only did he have a plan and how to deal with this kid his attorney or he tried to persuade place he spent two hours trying him i don't think i don't think we could see that as a certainty your honor i think you can it's certainly stuff he could have explored but there is no one fixed checklist for for developing this he had a plan another school of thought we can see that evidence is being someone being paid to come in here to try to get this guy off and it may be actually more effective for mr pike especially if i don't know him and we've had nothing in the record to describe his demeanor or his of his the way he speaks but it may be very affecting i mean someone may look at him and think well yeah he has it's problems and i can see how it resulted in i don't think we should go like this  so there wasn't a whole lot out there in terms of instructions with her niece and it seems of concrete in specific to me and what they had to do and what was appropriate and certainly based on that record put in its proper camper context you could conclude that countless performance was within the wide range of professionally acceptable behavior we are to pick it apart now because he didn't do a b c or d is to evaluate it with twenty else involved he doesn't qualify that remark with his family first of all so that could fairly be understood to mean anybody because that's what he said but even if it is only his family and his lawyer pointed out if you take the stand though the i will agree that in intro the defendant stated his position with more preferred bring it on the defendant in this case communicate i think he didn't want any they characterize their evidence and the same thing too with respect to their description of trial counsel and in his abilities or backgrounds and including such things as a lack of knowledge  resources i don't know if their county has a particular series of requirements or anything that was in place and it would be improper i think your honor because i didn't take it just information that got in the record this point that it at the same time you have to consider whether or not he saw got representation that was within the power of that of the range of reasonable competence there is no constitutional right to the best representation and that the quick to repeat it lisa but it has to be within the range of reasonably competent in this in this situation he had reasonably competent representation one hundred eighty four petition i think the commonwealth has correctly conceded that if this court were to reverse the grant of relief on penalty there be no question that the first proceeding and never been finished if the first proceeding in ever been finished and there's no way on earth that there could possibly be a second  successor petition because you're still in the same petition when it comes to the question of what time there is and whether whether council as it was dilatory congress determines what's dilatoriness with the statute of limitations with respect to newly in that specifically request to supplement his claims and the district court the commonwealth run notices that on the mitigation issue the commonwealth has brought up the new united states supreme court decisions that came out in the context of that actual decision the actual reasons presented by the pennsylvania supreme court not by some hypothetical court that might have decide the case would govern and one of the really interesting things here yes there can be no question whatsoever that what judge lancaster here did was exactly what can holster and harrington require you know he didn't doesn't use the term dual deference double deference because that hadn't been invented yet but what judge lancaster required and in applying that more conserve analysis he did double deference he took a look at the facts he in fact disagreed with the state court determination of one set of facts but said i'm bound by it because although i disagree i can't find it's unreasonable like he disagreed with the state courts determination of law with respect to the the exclusion of the lay witness testimony but again he said he couldn't find that that was unreasonable he did exactly what pin holster and harrington say you're supposed to do and then when you looked at the record he still found that it was unsupported the state court decision was an unreasonable application and an unreasonable determination of fact at least with respect to the department of corrections related mitigation and the mental health medication now we have reasons why we think he was overly deferential when it comes to the waves and we've said that we've said that i don't want to spend more time on it but it's absolutely clear that if you're looking at double deference judge lancaster did it