mots is on with us by audio but all three of us are on and i will begin by hearing case of vandross st star lame and mr gross is that the correct pronunciation  wow why don't you begin thank you your honor and may please the court the state of south carolina tried charles van gross for murder three times before a jury convicted him the prosecution rel heavily on forensic evidence and expert witness testimony is your vandross never had the benefit of a crime scene expert because his trial counsel offered operated under the mistaken belief that state funding was not available for expert witnesses because mr vandross his family at retained him the south carolina state court and subsequently the district court unreasonably decided this issue the state core order of dismissal found that trial counsel was effective in his representation of mr vandross under prong one of stric this state court finding that tribal council was affected wonderful on one of strickland was contrary to well established firmly established federal laws cited by the supreme who are going back to a versus  opinion on the report never addressed the specific impact of what trial counsel's error was also did not consider how this this matter was presented to the south carolina supreme court and in order to understand that is necessary to understand sort of the unique procedural history of this case when mr vandross was in post vandross on where they discussed whether mr vandross should get new counsel at that point in time or whether or not they should wait for the p c r judge judge newman to  issue an order in the case mr vandross of course wanted to have counsel changed at that point and have an opportunity to cure the matter judge russo opted for the  his hearing on the conflict of interest in the terminations the whether or not he would get an helsel and be able to reopen the evidentiary hearing judge newman of course issued an order denying relief on that order was likely drafted by the attorney general's office and the hearing that judge russo promised never to place there's probably several reasons why it never took place the st reason  that mr vandross had been promised this hearing so both p c r counsel and the attorney general dropped the ball on that issue and that's when ms franklin best and i got involved in the case and we immediately realized the the procedural deficiency that was the result of the hearing in front of good russo we mediately recognized that the conflict of interest was a major issue in this case we immediately realized that mr vandross was entitled to this hearing based on the moon and he did it the st thing that we did in the south carolina supreme court is that we asked the supreme court to remand the case to the dist or to the circuit court so that mr vandross through would have that hearing alternative to just bypass the remain and recognize that conflict of interest is substantial and require the appointment of counsel that would be able to have a new evidence fair hearing so it's important to understand that the relief that we were asking for in our state's highest court was to reopen the p c or where mr vandross would have an opportunity with constantly con flict free counsel the present the evidence on the prong to a strickland which of course is prejudice it wasn't until we got to the history or of roger morse and it was a well d respected crime scene expert retired from the state of alabama consulting in private practice and has been and you have to you have to go back and look at the trial history of this case and realize as i opened that the state of south carolina tried beryl's band draws three times before they were able to get a jury to read the affidavit correctly he listed a number of tests or investigations that should have been conducted but there is no forecast about any one of those to suggest that it would have been fruitful how do we handle that well it in it in addition i think there's two ways that you can handle that because in addition to suggesting other things that could have been done he also suggested things that could have been done in cross examination the rionda stand but but i'm trying to get to the prejudice prong and anybody consider around and say you could have done this this this this the question is had it been done would it to have led to something fruit fall in other words that there were there was really no no opinion and that i thought i didn't see any opinion as to anything that would have changed well again if you look at the supreme court decision in college versus whitley they say that a conservative having a hard time believing the direct evidence testimony from joe windsor bill wilson the nd way you could look at it your honor and is probably more of a martinez pat is you know the the prong one of stric we could have a hearing i believe we did ask for a theory mr morrison could testified there could be more discovery and an opportunity to develop the prejudice problem in more detail we think that on the record that we have right now this court could grant relief and remain in the state courts of south carolina for jurors to make the determinations on this is but if you disagree with us i two best things in the affidavit that you would use in front of a jury right that you would actually like imagine i'm just trying to figure out you know if you got that information let's assume that information exactly what affidavit says in tell me the two things that you would use from that in front of the jury all right and judge richardson not appreciate the question but i think that if i was standing in front of a jury i wouldn't just be standing there with mr morse is affidavit i would be standing there being able to reference is testimony and there's understand that that's not the only thing you're go wasn't raised with the been a fit of an expert testimony and on the defense expert which the case law will recognize is that jurors are much more likely to be convinced by defense experts and just questioning all and so i think that would be very persuasive to the jury and just following up on judge richardson question you've told the jury nothing you just said it would be helpful if we tested it but the jury doesn't hear they say so what and other words how does that change the evidence of the on which the jury makes a decision well i think that you have an expert who can be able to explain to the jury how that makes a difference and you've got to realize that in the posture that we've come here is every court before us is failing that trial counsel was affective under prong one i mean we've never risk vandross i mean the breakdown in the process where this case is going off the rails is mr vandross has never had the opportunity through an expert to develop these matters in a hearing where prejudice trial how can you say that when we have no opinion that changes any of the forensic evidence and other words there's been no test that has been considered the send that's wrong there's no prediction as to what a test would produce and other words basically it's just an idealist again you know i think it comes back to the value of having an expert come into corps and say you know based on my training education experience this is how you conduct a crime scene investigation this is the things that you do they did not do this this evidence would be directly related to whether ms wilson was credible or not credible and that changes the outcome this jury already was not inclined to believe her early the st two trials on her credibility  this man had a full evidence your hearing the hearing lasted several hours it was appointed counsel and after that hearing him move to amend his pleadings to refer to capture this particular issue you raise the issue at the hearing and he captured the issue in his amended pleadings the p c r court subsequently ruled on the merits the court held a council was affective and that there was no prejudice at no point in time in the state of south carolina i mr met mr bad rose in the opportunity to present evidence ny him access to court authorized funding or prohibit him from presenting is case in court mr vandross now challenges the state court decision for not giving him a nd bite the facts as you recall in winston the petitioner in that case was not the opportunity to conduct discovery he wanted to issue subpoenas in the case the virginia state court the night in that opportunity and this court that it's an suing decision was not a title that got us that situation didn't occur here again yet a court of wanted attorney that attorney raised this issue as well as numerous other issues before the piece york where this wasn't the only issue that they had mr vanderhoof was trying to obtain relief all either a whole host of issues addressed in the  this is also not a situation where they knew the evidence that mr vanderhoof has provided has fundamentally altered the substance of this claim again and winston mr ross i'm curious you address that issue do you understand mr venter austin make that argument i part of was looking for that argument but i never saw mr vend allege anywhere that the new information here fundamentally altered the claim that was presented in this state piece yark work it you understand them to to make that argument  you know that's a separate argument that we can address and i was looking for it and but when i go back and look at the briefing here i don't see that argument not am i missing that argument you know i understand this is not in your interest but you're not through the court do you understand them to be making that argument he hasn't made the argument your honor what he has made is the argument that martino's applies and that's one avenue the potentially this court could grant relief under martinez that's why i felt it was necessary to raise it and that you know press and i just i did was curious about whether it was an argument that was actually raised it was not contained in his brief but it's an issue that if you're going to seek relief under martnez that's potentially one avenue the court could do but that avenue is closed under this court's reasoning in the winston case and the wise case and also  recently in more versus sterling from earlier this year the test under winston and whether or not new evidence fundamentally alters a claim is not whether that new evidence makes the claim stronger the test is whether or not there is any evidence in the state court record that mr van rose could use to prove an essential element of his claim and if you look at his brief regarding whether or not the expert would be beneficial whether mr bandos had the opportunity or ability to say so everything he's hanging his hat on to establish the  prong was raised before the state court therefore if you apply that test and winston this is not a different claim the heart of this claim remains the same trial counsel failed to retain an expert either for affirmative testimony or simply for consultation and that's what the is your court ruled on so this new evidence doesn't change things because there is an adjudication on the merits martinez simply doesn't apply i have terms martinez applies to situations of procedural default of a clay and the any doubt about the reach of the martinez exception this court removed all doubt earlier this year in the more vs sterling case this court explicitly hill that martinez is so the effectiveness or ineffectiveness of p c r counsel simply doesn't matter and yes can i ask with apologies judge much for stealing your question but sort of ask to put on expert testimony that there's evidence that could it and that it made a difference as opposed to the you know this is the evidence that that you know a lawyer argues would make a difference on other words the possibility that there's a test that might turn up pertinent evidence if that ever sufficed to show to show prejudice wellhead and change the nature of the presented evidence presented before the jury so again if an expert sensually reads a transcript and identifies perceived holes in the state's case he still hasn't affirmatively changed the nature of the evidence so the jury is going to hear the same habits at trial and based on what was presented before the p c or courts of the answer your question is no less the expert prejudice would exist in that case you are a give me hi this is dynamite i i'm not sure i really understand your response it seemed to be used thought that you could you could make a proper with an expert and that if the the proper came through it the experts said what the cropper said then it was up to the jury to decide whether that would change the case i what i would really with getting out in my question i'm maybe judge ridge who was t is doesn't he experts have to opine didn't he it's expert view this would change this new whatever it is would change them or not your honor i think that he would be there has to be some type of change in the nature of the evidence equity there be through the experts testimony that you haven't to say presented was on a liable or it could be through new evidence new testing that the expert conducted but there has to be some type of change in the nature of the evidence after that experts i think i understand the change when i may ask you is is it necessary that the expert in the dish change would make a difference in the experts there will agree that there is something that the expert has said is new right that's what you were getting at either a new test or something that he point to that should have been done otherwise or something does the expert also have to upon that that would have made a difference or is that not necessary ultimately that's a decision for the call it would certainly help the petitioner's case i don't think it's necessary that's one thing the court could take into consideration in assessing prejudice a determining whether or not there would be a fair probability that the result trial would have changed that's up that's a decision for the court i would i'm just kind of follow that through because it be a little odd for us i mean you know mr morrison here may be great at looking at crime scenes but why would we think he's an expert on what juries do your honor you for the nail in the head that would ultimately it's for the court to  as your honor mentioned he may have great experience on crime scene investigations but he's certainly not an expert and sound suppression he's certainly not an expert in any host of any other  l and he might be an expert in you know being a jury consultant we just don't know that about him yes ron that's correct i suppose that if the experts looked at the tests that were actually conducted and gave the opinion that the state's expert made a wrong reading of it didn't apply a scientific standards and that when you do apply the scientific standards the outcome is different that would be new evidence would net yes your honor would but again that was not done here so we have an adjudication on the merits martinez by its terms does not apply the issue presented before this court is whether or not the state courts it you'd occasion d of this claim is claim of deficient performance as well not every case requires an expert or to be tried affectively strickland recognizes that there is a  understand the petitioners argument however is that the reason given by defendant's counsel for not getting an expert was the funding which was an erroneous assumption and that that was the deficiency in it with the assumption that had there been finding he would have gotten help forensic help it seems to me to to focus on the deficient performance is a much more difficult task than a focus on the prejudice it's a more difficult task but the issue here is not whether  that an expert may be beneficial a lot of things can be beneficial strickland is not codified things that are beneficial strickland does not set a floor of the best practices floor under strickland is professional competent professional incompetence under prevailing norms different defense attorneys to cases different ways no two defense attorneys even the best ones are going to try cases same way so in this particular case file counsel said it may be beneficial have the sound expert never testify that it was necessary so the p court could have held reasonably that this was a situation where trial counsel could've affectively represented his client to cross examination alone and that's what trial counsel did in this case these perceived holes in the state's friends of cabinets he raised all of them to the jury to the jury had the c s i forensic technician can see that there was no physical evidence putting his client in the home he had the gunshot residue expert can see that there was the potential of the lead particles on his client were incidentally transferred he had the d n a expert x expert can see that he's not articulated any change in the nature of the evidence that would have been presented to the jury he simply read the transcript and identified essential holes in the state's case there's been no of testing on any piece of evidence is not challenge any experts qualifications he's not challenge any expert in he's simply identified or see limitations in the state's case in the same way an retain any expertise in this case the issue was i did not told him that i thought it would be very beneficial to us but i was retained in he did not have funds to do that and then he can get in tinubu explain eight there's a finding under prong one of strickland that counsel was effective and that is just objective lee wrong as the core pointed out a minute ago probably counsel just failed to it is that do we analyze that only subjectively so imagine that he says this and the only reason i didn't do this is because i didn't think i had money and that was his subjective belief and in other words using cross examination instead of an expert whether the question is is that objective leean reasonable not whether this lawyer subjectively screwed up and i think this lawyer a reasonable objective defense lawyer who could decide to not hire an expert instead used cross examination to flesh these issues out may not that's the cuisine that i mean that's the question to which the the state court gets deference on is the objective question even if we agree with you that subjectively you know this lawyer screwed up that the lawyer objective lee screwed up because he didn't understand the law the lawyer also testified in that eight expert would be very beneficial in this case this is a case  where the state relied on the one witness's testimony who was very uncouth uncredible that led to hungary's and this whole host of for in sick evidence which is directly what we tried to bring in in this hearing and so you know the i think you have to look on prong one i think you have to look at the order and the uncontested testimony from trial counsel was this case called for an expert we didn't get it because i didn't understand how to get it and so i think you know prong one the of those the state supreme court of the state courts the district court  just got it wrong i mean it's contrary to you know well established law you know crime to do you know this is this is not the case that the the attorney general referenced the recent more  opinion and i know your honor was involved in that case the more a case is very distinguishable because that's a case where some mitigation was presented in a capital case and arguably better mitigation was court it's not that we're trying to say their own problem too we're not trying to say that we've presented something that's different or better we've presented something new which is what we asked the do in the state or the prejudice prong in state court so whether you call it fundamentally altered or just entirely new evidence presented on prong two this is a different claim than what was all right thank you mr ross excuse me mr gross i think your time is up it is an hour and we appreciate having your argument i notice you are pro bono and of course that's a great service to the court into your client will last normally come down at this point in time and great counsel that's the tradition in the th circuit it is a wonderful practice