taken and admitted in violation of his constitutional rights trial counsel was constitutionally deficient in failing to have the statement suppress the basis for both suppression motions was in the discovery file available to counsel is without excuse for this oversight and this was prejudicial without the incriminating statements there is at least a reasonable probability that the jury would have doubted mr rich he committed the crime why do you think so  he's robbing a convenience store in broad daylight and although he has a mask on inside the store he takes the mask off when you leave the store in he's looking for one at a customer who's looking directly at him he was he's probably identified the cork identifies him on the basis of his clothes he had on his person the money including the two dollar bills that had been in the stores this seems to me like more evidence that we usually see so the standard is reasonable but there's a reasonable probability which is lower than sufficiency of the evidence the case ins with two police officers who get on the stand and say mr ritchie told us that he smoked crack and he went to the store and robbed it if you take those confessions out the evidence is at least equivocal there's some doubt the money tubes were never entered into evidence there's a passing remark made by an officer that he found tubes on the person but the jury never had the tubes presented to them the store clerk saw the robbery the robber was only in a mask at the time she saw him with the show up who is no longer wearing the mask she identified him as wearing a different shirt that he had on during the robbery and no longer wearing the baseball cap during a robbery didn't the customer clearly see him and then he go around the store and come back it's and  statement please read from it and then finally says oh i guess it was the other color shirt and then the customer said at the show up mr he was wearing one color shirt and then the store clerk said it was other color shirt and this sounds confusing because it is it would have been confusing for the jury as it unfolded at the time of the trial the cleese never presented evidence on the mask or the mask was or on where the cartons of cigarettes were and if he had  he had two packs in newport cigarettes on things like cigarettes that's correct but the standard is just a reasonable probability reasonable doubt his lawyer missed two clear suppression claims that would have kept out two confessions and the state ended their case putting those officers on into their hosing arguments with test emphasizing the confessions and this just critical the first one was in violations fifth amendment rights was brought down to the station what about the officers testimony that he asked him no question in the officer testified that he asked him no question that's correct officer at pretrial and trial testified that he gave the miranda warnings that  that the other officer president said the subject said he didn't have anything to say that would of diverse array to the reliability of officer by prince testimony his testimony is not reliable that's the basis of our claim ok we have these two confessions coming in different procedural in different procedural posture should he want to talk to you about the post arrest statement where you have a state court finding no prejudice how is that an unreasonable application of the law for the facts will allow the finding of no prejudice under strickland by the state court was unreasonable on  said so you're saying that the court made a mistake you made a mistake and it's not only mistakes and reasonable because any other court that would have seen the same issue would have found that there was reasonable it said that the trial counsel had tried to have both statements suppressed but the trial counsel tried to have those statements suppressed and totally different grounds but your honor if you don't mind i think this will help even if th mr rich is claiming claim one you can still find a claim to now are you talking about the post yeah ok bit it and i appreciate the distinction i really do i'm just trying to get i'm trying to deal with one and move to look so so then you think the state court was unreasonable the determination of press prejudice the state court was that his him writing was aren't they report that he didn't recall ever raising the report with mr rich you're pressing the claim i think the circumstances are very similar to tice for says johnson decision ok but it goes to your facts were not in dispute there are a lot of facts in the trial court here that were in dispute correct and tice it was very clear that the  the statement was made that's a similar statement that was made here that the interrogation continues that was very clear we don't have that kind of clarity  raise a first claim we think it's a valid claim but what we wanted to point out was a trial deficiency because we think that impacts the prejudiced analysis on the second claim so you can find that the state court a reason you can find you can find a state court recently applied strickland and still find it was make a finding of two council errors two incriminating statements come out and that is not an end run around because you're still finding the state court reasonably applied strict one on the first claim it can still be an incorrect finding but you still have to show be a substantial it investigate way to reach but you do you have a procedural you have a procedural hurdle to go through are the martinez prongs that allow you to review the underlying claim to know in your argument about prejudice is use the same correct it is the same looking at the facts of the case and prejudice on the second claim you take up both incriminating statements class so do you get the benefit of excluding both yes and why would that be because the trial counsel made an error in not having the first statement suppressed so we're assuming we're giving you we have to we have to find in your favor as to the post arrest no because you can find i mean yes but you don't need to find in our favor for claim one you can still find the state court recently applied strickland even if it's finding was incorrect and you can say we think there was a trial deficiency obligation to respect the request of counsel and they can't knowingly circumvent that right by trying to deliberately elicit incriminating statements from defendants knowing that counsel had been had been requested and in this case that six men right was still violated it just wasn't  invalidity was violated because the officer went to interrogate him during the jackson error when he wasn't allowed to elicit in a criminal any statement after multiple violations of his constitutional rights the day before and you're saying that so tell me about the prejudice that one ok so assuming counsel deficiency on the second claim now the question is prejudice what evidence was tainted by counsel  second only right and so you take out the host here in statement and then you're left with the post arrest statement obviously and then the question there is do novo you can find that statement should not have been in there that's right but the state in their response briefs cited a record in public records they conceded that mr ritchie was advised of his right to counsel we know there are public records where he was appointed counsel by an order of the general sessions court to slater brutal thank you your honor may it please the court my name is melanie brown i'm with the south carolina attorney general's office but it's my pleasure to be here this morning representing the ward in this section twenty to fifty four action on two issues have been presented one was preserved for merits review in the district court and one was defaulted and the question is not whether different act binding could be made or different motions could have been made or different representation given at this point justification so lacking in justification that there was an error well understood and comprehend in an existing wall beyond any possibility of fair minded disagreement an extraordinarily high standard and it's extraordinarily high because this case comes to the district or after a full review by state there's already a state record in place and the p c r judge looked at that record and made procedural postures are different he would cut them sure absolutely i'd like to turn to them on that that was preserved that the p c r judge did not consider and specifically i would like to talk about the  report that was offered and this would be from officer libron and the reason i wanted to underscore this two things the p c r judge found in the order that the report was not offered and he did not consider now the transcript shows that the report was discussed and in my brief i noticed that they did discuss exactly the what the document reflected i will say this i g and the judge apparently has some reassurance at that but the problem is it's in the water and under state law posing gallons r p c or council at the obligation to group in to make a rule fifty nine and say wait a giving fair review of the evidence before it there is a ruling that that libron report was not accepted and was not considered and p c r counsel did not request that the v c r judge revisit that ruling and it went up on appeal like that and therefore that report could not be considered and that's important because the magistrate judge and reviewing state court records noticed that that report that libron report that mr ritchie is relying on for the preserved issue was not a part of the record and the p c r judge found that mr ritchie had failed to present specific and compelling evidence even if one looks at the libron report that wasn't accepted and i believe that judge as he has and mentioned this earlier they the wording of that report just says through conversation and we have to keep in mind this is a police report this wasn't through interrogation through questioning conversation indicates a bit of a give and take a bit of a voluntary nuts but in a case like this where you have clearly  and here's the problem we have with it we have to fall procedural in substance if i may speak to the procedural first district court can't look at it because the state court didn't look down the only way to expand the record at this point and again i go back b s because i believe you use the clear and convincing language that's twenty two fifty four that's got to be that you could not have presented your factual basis and it's something that is akin to actual innocence something that would lea under to believe that you couldn't even deal with me on substantive substantively you look at it and first of all we have the conversation we don't have interrogation we don't have to question it's not do is it can complement the in the investigation that counsel now we have to remember that the report that was actually offered in p c r had counsel's underline that was established that came out of discovery he had reviewed by contrast entice in this court's opinion and hides the fact that defense counsel said i should have raised since i should've done that i would have made the motion didn't catch that that's not what counsel said here it could have been raped that is a very tepid response to being pointed out what does this tell us well we do know that he investigated he had the report and he spoke to his client at least seven times he was also very sure that the statement would be very important to the state it was it was used at trial he knew this and yet he didn't bring that up he'd decided and the fact that he didn't say that this is absolutely wrong and the fact that it wasn't contested at trial what he and i think asked about whether or not it was such a it why didn't he do it and he says he didn't know he says he doesn't remember so you are creating this idea that it was a tactical decision i am suggesting it was not inconsistent with a tactical decision and that who far more clearly definitive with post back at the prejudice i believe that it reached both your honor and especially there is a sort of a combination sum up on paragraph on page five hundred of  and that's where the v c r judge actually said that mr ritchie failed to present specific and compelling evidence and that goes to that let's look at the shades of gray and look at how the different occasions when they failed to present specific and compelling evidence and there was no prejudice so it's a very strong ruling on each one so how do you interpret that as a ruling on deficiency i found that our i read it as he was not deficient because he had investigated the case and he presented the voluntariness defense and he was successful and having the first statement it will recall there are actually three and all three statements are very consistent mr ritchie taking responsibility at that point and not because of a need of money for drug use but the first one was i don't understand why the representation and the adversarial process to be preserved it does not require near perfect advocacy and united states supreme court has just recently underscored that and a maryland case where they said merrily reversed because of an issue and requiring that knowledge that something else would have been a better and in that case i believe it was contemporaneous issue but it was information that had been accepted that was later found not to be acceptable but they underscore it is not a perfect representation you're not entitled to perfect representation but you are entitled to adequate representation and to test that case and adversarial proceedings and that kind of goes back a little bit to more of the procedural not speaking directly to you because i'm still on my procedural explanation i certainly don't mean to leave anybody else out on this but because we're in a federal now we're looking back to see when this was developed when was the factual basis developed is that that the record that's that was before the district court is that sufficient to make a determination and to do that you need to look back at the state proceedings and you go back all the way to trial and south carolina you have two opportunities to have the statement passed on you have pretrial you have preponderance of the evidence the trial judge will determine whether it's admissible but also in south carolina that statement goes before the jury and the jury has to make specific find that the state has proven beyond a reasonable doubt that the statement is voluntary before the statement can be considered along with the other two opportunities there mr richie never did present any testimony and he could have presented his own testimony that wait a minute the officer was asking me questions yes testimony on the stand is wrong that it would in very easy to do that in pretrial because he wouldn't have been subject to cross examination on everything else it would have been limited to the voluntariness he didn't do it there on appeal he brings that up but there's no evidence in the record at that point p c r brings it up again both issues still he doesn't develop the record on the second issue which we will get but i wanted to showcase how this is mr ritchie's burd record is so develop about identification and clothing that things work and the things that are brought up your honor would be things that you could ask a witness on the stand you could you could play around with this you could do a full and fair cross examination on this and you'll notice that counsel did counsel ask about these differences and recall but the bottom line is you had to end of the jewels with adequate time to observe the robber testify to identify a case and there was an immediate show up after that that's not impermissible he still had his the clothing that was consistent i won't say it was acts absolutely correct but it was consistent with the robbers he had money consistent with what was taken he had the canisters and he had the weapon that was recovered there was a great jacket that was recover and the compressed time frame and the location so near the robbery itself we're talking maybe twenty minutes after he ran out that is very very haven't had the evidence that the clerk also seen him without it is mask my recollection was that the clerk identified him in part based on his clothing i believe that's correct i do not believe she ever saw him place my understanding in the record was the  material was taken off as he went outside where the customers on but again you've got compressed compressed time frame you've got the compressed area this is a very quick now but it certainly shows how everything comes together he said the statement i have it together it does its eyes it together it makes sure that that where everything that was there even is consistent with what the defendant would say we don't need it we tied everything together by presenting all the oh but this is consistent with what the defendant himself with even said so was it necessary no but it meshes well as it should it meshes well if it's a truthful statement it will mesh well and of course he said it three times it was it appears by all accounts to be quite true now i do want  at a little procedure back again because there are judges looking at this and he's looking at it and context so what happened at trial and what was offered during the c r as well and the record does not support that he asserted his rights now there's no contest to the fact that officers say wait a minute you set the record as the matzoh or what that mr richie asserted either the right to remain silent and did so or asserted his right bond hearing on the bond form there is a checklist and magistrates will check all if it is a general sessions case a felony case like this they will check all that he has advised of his right to counsel if he is indigent counsel can be appointed to him checked up and i will i will tell you i've gotten the clerk's records from the greenville county circuit court and there is a bond report in there it's the you have miranda and you have the officers telling you you have the right to counsel here and you can stop any time you didn't do that so he the assertion that it makes sense and the south carolina procedure in this form indicate that he was it buys but doesn't say anything about is affirmatively invoking his right to careful is that what you're saying i'm trying to understand the significance of police is correct the only thing the bond and there's a bond form that opposing counsel actually added to their brief that's the basic form the one in the clerk's office just has one check by advised of right counts that's all it is and does it then indicate whether he asked for counsel was he up when it counsel does it indicate that no ma'am that does not that bond is very short it's happened that yvonne here no ma'am i have not been able to determine that from the records in fact i thought originally he had had counsel that perhaps he retained because i knew that counsel had changed by the time a trial  it does not appear that that way i have seen a letter that says i have been appointed to represent mr rich and so but i could not tell you men where how that could be developed you know i'm sure that public defenders office thank you thank you the impression argument we've already mean on the second claim one thing i would like to emphasize is that this is a very unusual case and how the prejudiced analyses on the two claims interact mr ritchie could not succeed on prejudice on the first claim unless the second post bond hearing criminy statement was out as well his state he was counsel was ineffective failing to raise that second claim and so that not only deprived him of the prejudice from that claim alone the state court did not have both claims in front of it at the same time and that was critical in his case because he cannot win on prejudice both statements one of the other statement is that and so the reason we're in this log jam now on the procedural that's why this case is unusual that's why it's appropriate here to revisit to look at prejudice on the second claim considering the fact a purse incriminating statement post arrest statement should not have been before the court regardless of the court i had some clean one for the defendant to argue that there were other reasons why the police were going around his rights in that case the issue was the police may have there was a factual dispute whether the police told him whether he accounts with the time or not here you have an officer that went to elicit incriminating statement from the defendant at the time jackson was a law for two decades and he had asked for counsel and is on hearing and his rights have been violated the day before