long before trial counsel knew this case was headed to a capital sentencing hearing and as they later explained they wanted to present the most vigorous case in mitigation for mr tolle at the at their last minute and half hearted investigation into his background failed to uncover the profound and compelling life history that has jury was entitled to hear to counter the state's twenty witnesses and aggravation and putting five witnesses providing victim impact testimony counsel presented the testimony of a single witness mr tall its mother who in the span of twelve pages of the transcript painted a fairy tale portrait of a happy normal childhood that was far from mr tolle that's reality i'll begin by addressing this claim to an addict and ineffective assistance of counsel claim and then turn to the prosecutors and proper argument mr croft and mr watkins were representing mr tolle that in their st death penalty trial to to go to a jury and they knew that mr talat had expressed early on that he had a desire to plead guilty and ultimately did in fact plead guilty and that there was no guilt phase defense in their minds there was no question about the identity of the shooter and this case they waited until the th hour to begin their mitigation investigation requesting from the court one month before the trial date and for the assistance of the mitigation specialist and it's important you have been to have they have done some mitigation investigation before the request i don't recall if that happened i had but it ok and if it did that's a reasonable determination of fact if there is contradictory evidence in the record why on earth or whether or not the the defense counsel had conducted some minimal investigation at that cases that i have waited until even and even shorter periods of time but the point is that the fact that they delayed so long exploring mr telex life history in earnest that when they wrote to pamela leonard of the multi county public defender's office it's very telling what they how they describe their client they they they basically say we're going through the motions and we believe that there's there's not much of a point to conduct innocent investigation but we know that we have to we have to get on the record that we checked into these things but at the end of the day we believe our client is cold blooded and  not the were doing this to go for the mission well to be fair that's not exactly how they put it right i mean they did say some of the things you said but what they said is at the end of the day we may be faced with someone who is cold blooded right that's that's different than saying we have someone who's cold blooded or we're just going to go through the motions we're not going to find anything but we've got to make a record of it that's  older brother didn't want anything to do with it and the defendant himself said i don't want you doing x y and c then they hired a medication specialist did they not in this case y find they hired the route they sort an application for the medication specialist in june of ninety seven dollars although they had been on the case since ninety six dollars the actual trial of the those early suspicions bore were borne out by the record and how the defense attorneys presented the case at trial and how they presented i think the case in mitigation to the jury and specifically  opening and opening the counsel defense counsel said you're you're not going to hear any medication investigation you're not going to hear that mr tolle that was abused as a child and that he was a crack baby you're going to hear unfortunately that he committed this th counsel knew that this information was inaccurate from the interview with mr robbins and his mother herself but also from the other witnesses that mr abernathy the medication specialist had interviewed can i ask you about whether or not some not all but some of the mitigating evidence that you say the trial counsel did not put on constituted what has been referred to as the proverbial double edged sword for example the evidence that he came from a broken hole not that but that he was then looking for his brothers to try to you know provide role models for him when they left he found gangs to be the source of that support and then was involved in criminal activity with them wouldn't that have played into at least part of the state savings has could be considered a double edged sword in some respects but it's important to note here that mr hall that's going affiliation was coming out it was he and he had admitted it in his police statement that was played for the jury and during this trial was played during deliberations again mr patel it's criminal history was coming in and so for defense counsel to sit on their hands and refuse to offer any explanation for why mr hall that had come into those circumstances was unreasonable he did and he didn't come into those circumstances he planned and committed coldly calculated robbery which the st thing he to to join a gang in the st place or how he came from that crimes on top part of the contacts was when he got out of prison the last time he could have taken a job in the fast food restaurant but that wouldn't give him as much money as he evidence that really can't be considered as a double edged sword and that's the the trial counsel was aware of of these this information and completely admitted it and i'll give it the court a couple of examples for one miss robinson mr helots mother testified about his father but all she said was that his name was arthur toilet and that he is deceased the jury never heard that mr  was a vietnam veteran who had abandoned his son at birth and how leon talat as a young child begged his mother to invite her for his father over so so so  would dress in his best sunday clothes and wait by the door for his father only for his father not to show up disappointment after disappointment the jury never heard this they heard only that he hit his name and he was deceased siblings had left the house under very difficult circumstances themselves and they they had turned to criminal activity and become addicted to drugs and these were the people that young leon was looking up to and his life and had raised when his mother was a single mother and what's neighborhood and working all the time so much that she had neglected them and the jury never heard what the jury heard tulloch severely and that his mother would never intervene and these beatings as most other abernathy had gathered in her investigation occurred when he was a young child well before the kind of wrong night in the park rather than and facing what was to come at him we have a finding by the state court on prejudice and we have to ask whether that determination was contrary to or an unreasonable application of clearly established strickland law if everything you wanted to put in thought was not  mitigating circumstances we have a state's case where that they held nothing back this this was a meant to be a sentencing hearing only but the state presented as trial counsel acknowledged effectively what they would have done at a trial where there had been a guilt  the state held nothing back and they presented twenty witnesses none of which the defense counsel cross examined did not ask a single question of any of those witnesses and presented to balance that one witness a mother begging for her son's repeatedly that this was an excess execution style murder that it was planned from the moment mr tulloch left california but let me tell you well obviously the robbery with loaded far i've never understood the theory there was no indication they planned to kill somebody that's why you carry a loaded firearm to the crime but i don't understand why you do less aggravating  more aggravating to say he went up and shot the victim in the head st and then shot him twice in the legs and once in the back as opposed to saying he shot him in both legs in the back and then with the post or six firearm six inches away from his head gave the kill shot i don't understand why that version that nd version is less aggravating demand on the ground he's wounded and he's shot six inches away through the head yes or it certainly doesn't change whether mr tall that was eligible for the death as something not not what i'm talking about i don't understand wh jury would think more highly of the defendant or less worldly of the defended if they thought that he wanted him in three ways and then shot him to kill him through the head from six inches away least a defendant putting himself a very dangerous position there was there was an execution style murder in this case yes or no on the ground he's wanted and helpless and the defendant petitioner takes the gun holds it six inches away from his head and firearms that's execution yes your honor i think that the critical difference is whether that was the result of a struggle was another eyewitness to the to the crime who did testify that he observed a struggle i want to be mindful of my time and having observed the prior argument i suspect there may be some questions about the prosecutor's improper arguments i'd like to turn to that now if i may you're on top of on top of how counsel's failures district attorney congar intentionally confuse the jury about the life sentencing options was all but guaranteed not merely a possibility if the jury chose that option and then in closing he suggested that mr hall that could be released with a life sentence and seven years something he knew was not possible and something that under georgia law had one been requested a mistrial would have been granted that's helped prejudicial the georgia with such an argument we had one of those in  immediately to the instruction which i think signals very clearly that they were concerned about this argument and and unfortunately they did not ask for a mistrial and the court overruled the objection and did nothing to correct the gross misstatement and we've said in the previous argument we tried markets i've got three today and tomorrow and jordan got one that might be confusing but i thought the judge gave an instruction to the jury that they were not consider parole i'm wrong about that are that there was no parole for malice murder well there is no instruction given at the time that the district attorney made this comment the judge did instruct the jury presented to the pattern jury instructions that a life without parole sentence means life without parole but then but but we know that th jury was was struggling with that and that sentence because they asked not once not twice but three times for clarification from the court about mr hall it's eligibility for parole with a sentence of life without parole and i think you say in a footnote the you are not challenging the state court's decision of what instruction to read but are instead challenging the prosecutor's comments which sought to mislead the jury about the is why we we must consider this court must consider the failure of the court to correct that that misstatement of the law in the very intentional misstatement of the law might add as as your honor have alluded to in the previous argument this was consideration for the jury were those three sentencing options may have reserved the right answer but i think the other two charges just dropped out was that part of the plea bargain or so i don't know it's a felony murder charge dropped out at that point or as a lesser included anyway yes your honor so it would have been subsumed in the harwin so cording according to the district court's order he pled to all the charges i have to look back to see if that's accurate or not but the district court said that he pled guilty to one count each of malice murder felony murder arm robbery possession of a farm firearm by a convicted felon in possession of firearm during the commission of a crime as well as two counts of aggravated assault and  grant please the court my name is sabrina graham i'm here on behalf of the warden asking this court to affirm the district court's denial of relief i will start with the prosecutor's argument since that's where we ended you're correct the i just read the charge i think this morning where he i mean the plea and mr toilet did plead guilty to all of those but it was my understanding when they were doing the charge of the charges during the syncing phase that the prosecutor asked for them not to charge on felony murder because he pled guilty to malice murder but i could be wrong about that this i think st of all it's important to mention hammond i'd like to say why this particular case is different than hammond and hammond there wasn't the possibility of life without parole in that case and the prosecutor had argued that we don't have that possibility to the jury and that was what was air and that particular case it was a different argument but however the george from court did find the prosecutor's argument in this case to be improper so the question i think the easiest question for this court did that make the proceeding as a whole fundamentally unfair and obviously for you get into that a lot of the question that i asked your colleague incorrectly at the prior argument is this gentleman still around trying to work his passed away because he had a lot of health problems but that's my best information on that and i think i know what your next question will be judged jordan about whether or not mr connor had been condemned by this court did he answer that his yes because i got it i got it wrong in the prior case which meant that was this case i think it was on a issue regarding arguing facts that weren't in evidence right it was likely it was slightly different but he does have a way with his words or he did yeah back to the fundamental unfairness i do believe that you can't say that no reasonable jurist would have determined as the georgia supreme court did that the trial was not fundamentally unfair simply because of this argument especially when you look at a tally of the circumstances and as judge carnes pointed out the execution style murder that you have here but he had but it wasn't just one and you may be right about the end result given the standards that we have to look at and apply but it wasn't just the comment about the punishment under various religions it was also the fact about taxpayer funded prisons and prison being too good for him and so forth and so on right there were for comments that were improper like on their face improper yes but i still think that when you look at everything all together and i'm really unsure here if the core granta see a way on those other two issues or it was just on religion and whether or not he mention really whether he mentions parole i feel like the other two issues we have i don't need it but if you're but if you're looking at the totality of the circumstances on prejudice you really can't ignore the context of the argument right but i agree with the yes gesture and you do have to look at the entirety of the arguments and the georgia supreme court contrary to what my posting counsel said i do believe that the georgia supreme court under their own precedent and state law did look at all look at everything look at all of the statements that they made and they assistance st i'd like to address counsel's investigation and whether or not they were deficient obviously the state court found that their investigation was adequate and i don't think you could say that no reasonable jurist would have would say that that it was an adequate investigation i think there's four specific areas that they have honed in on and say hey b s that they said they should have delved into it gangs the stepdad depression and then drugs and alcohol but trial counsel knew about all of those things they knew about the gangs they knew about his drugs they knew somewhat about the stepdad i think there's conflicting information in the record regarding what truck he also knew about that because mr toilet actually filled out a questionnaire for the mitigation specialist in which he was specifically asked whether or not he was punished and he said yes but it didn't really hurt or something along those lines it wasn't that bad so and also with the depression so the trial counsel knew that he had been felt suicidal about his being i guess caught for the th time and locked up and so on all those particular things trial counsel stated at least mr crafted that this was a double edged sword and we didn't think there's no evidence of mental disability there's no evidence from an expert there there's no exploration of the impact of drugs cocaine crack in particular there's no evidence about the beatings and there's no evidence presented really about anything other than a mother seeking a plea for mercy for her son before the jury other than that let even assume argue wendell that the an investigation was out of court nothing was put on the table for the evidence nothing whatsoever was presented on behalf of the defendant i think that's a reasonable decision in this particular case because every avenue you that they could have put up would have brought in aggravating evidence and as you know the i mean the state was tenacious in this case and i think that if they put in information regarding his mental health in the state would have called the west central doctors who testified who'd given reports that he had anti social personality traits i think that if they had put it stuff about gangs then the state would have countered with ok well he's not eight hundred and nine thousand years old he was twenty six when he committed this crime he's been arrested in arrested and arrested this is just a career criminal and now he's trying to make an excuse regarding drugs and alcohol again truck counsel thought that was a double edge sword which it very well could be and there wasn't really a lot i can except that in many many contexts that would be so but we've said it but i'm just asking in the context of this case where they basically put out a lot of other than a plea for mercy that it was a drug addict might have well been relevant to explain conduct but it wasn't offered in any way no experts got on the stand to say here's the consequences of the level of addiction that he had nothing was put on at all the beatings that they claimed occurred no presentation about about that they couldn't go on residual doubt because of course he had pled guilty so what little they had they didn't use i suppose because they thought it would have hurt  but i'm asking whether that was a reasonable strategy where they had nothing and presented nothing other than a mother's plea for mercy i still think it was a reasonable strategy in this particular case given this particular crime if it were a different kind of crime maybe not but you have someone who has taken a greyhound bus all the way across the united states in order to carry out an armed robbery you have three eyewitnesses saying that he walked up to him and shot him directly in the head are at will shot him in the  head and shot him some more in this particular case so you have if you're going to put up any of that information it's it's going to bring out all the aggravating evidence i mean wasn't cute you know please go ahead good let me ask you this do the jury hear anything about his prior convictions and imprisonment they did hear about the prior convictions yes you say the mental health expert would open the door to lips incarceration history a consistent thirteen imprisonments but if the door's already been opened somebody has walked through it i think that in this particular case the truck ounce will testify that they did not want to continue to harp on that that they didn't want to bring attention to it and they also felt like let me point out that the district attorney had asked prior to trial for mr to let to be reevaluated by the west central doctors regarding whether or not he could be housed safely and that was something that trial counsel very much did not want to happen they didn't know if it would be good or bad and they felt that they could have aggravating information there so i guess i maybe just carnes she just current is not getting at this but if not i'll get to it if if the state is proceeding at the very least on the theory that the defendant should be sentenced to death because of what he did and who he is and has introduced evidence of his prior convictions and if his prior statement in one shape or form came in alluding to the gang membership what do you have to lose to take that evidence on or at least explain it or give shape to it in one way shape or form it's one thing if and again it doesn't drive the result but it's one thing if if the state had stayed away from it and then you don't want to open the door so that the state continues to stay away from it that's one thing but if the state which goes st has already put it on don't you have some sort of obligation to try to do something with it or at least deflect it to the extent maybe the answer is you can't but it can't be that you don't want it out because it's out that can't be the reason that that's not a reasonable strategic decision i agree with i agree jordan that if it it was out it just was it the st not spend a lot of time on his prior convictions bringing out this park makes sense during testimony and regarding the gang that came out through petitioners statement he gave to law enforcement but it was it it wasn't i guess in this particular case if they had spent more time with then it would just give them the state more opportunity to attack it that is a reasonable strategic decision you know something's going to come in why was it then reasonable strategically to keep a mental health expert out i why would it be strategically reasonable to make no reference to the beatings that he sustained as a you know bore so we're guarding that mental health evidence trial counsel testified that they had evaluated by dr grant he spent two days where they were eight hours a day and they called up dr and they said what can you know you do for us and and according to truck else will dr grant said don't put me on the stand i can't help you he's a saner he is you and i they did not feel like there was anything mayor they could put up that was helpful and again you had those west central stating that he had anti social personality traits so that would have been aggravating to them they didn't think there was anything necessarily mitigating there other than maybe he could be how safely they did testify to that it was the last and that particular says the trial counsel testified that they knew that he had been corporally punished but it didn't rise to the level of of what they're saying beatings they said that they thought that maybe many members of the jury had received the same and they would have thought he should have received more otherwise he made out of concert kang but i think in this particular instance when you look at it you have before the court you have their school records you have  affidavits from family members and you have very very little evidence here that he was beaten other than from mr tall and i think one of his sisters that that's the only people who are saying this there are no defects records there's no evidence actually that he was deprived of anything there's nothing in the school records showing this it's just it's a very scant record on showing the beatings but again even if they should have put up the beatings i don't think that would have mitigated this particular crime even supposes stepdad beat him he was twenty six when he committed this crime he wasn't he wasn't a kid anymore i don't see how that mitigates this particular like a kid your position is and even if it all had  juror standard or here under a d p a right so the last issue i think that was addressed by opposing counsel was mr tressel and the the crime scene reconstruction that he put together there's a couple of things i'd like to point out i think there were actually two people who who were eyewitnesses for the actual shooting and then they counsel mention that there was a statement from a i think of mr grant them who stated that they were struggling every weapon it was a state he gave to law enforcement not before the jury a but actually what mr grant them stated was that he saw them close together they may have or they may or just been close together that's the only person who says anything coming close to toll at the crime that there was a struggle and that's when the gun went off that's just speculation on the part of mr tressel as far as the medical examiner's testimony was been a struggle with the weapon i mean he does talk about the trajectory of the of the bullets but i don't recall him saying that it was indicative or not indicative of a struggle i don't recall him being asked that at all i could be wrong that but i don't think that was a question before him so the only information they had before the state b s court was mr tressel speculating that there was a struggle and that when possibly the kill shot went off there's no way to know exactly what order these bullets went and but it doesn't matter i mean we know this man came across the country to rob this car he said i came to hustle money we know that was his purpose to come there he showed up with a weapon his buddy was across the street with a weapon and you know i mean the man didn't even get his his pistol out of his holster the victim did not so i don't think it matters what order the bullets were in i mean the shots were in and i don't think there's really any conclusive evidence showing at all that there was a struggle with this weapon other than mr grant them statement equivocal statement to law enforcement of that all the witnesses before the before the jury said we saw it and you know obviously i think  when you see something that traumatic you can mix things up in your head and it's like the law enforcement officer stated when she's pulled up and she saw him shoot the victim she felt like she was watching a movie because it just seems so unreal she thought they were filming something so it's not unusual that they would mix up where they actually saw them shoot but they all testify that the shots were one after another bang bang bang bang bang there was no testimony that there was some sort of lapse in there where there was a struggle so i would submit that as found by the georgia supreme court when they granted that c p c application you still have a shell prejudice there because no matter what order they're in no matter how you do it he showed up there to rob that brinks truck he there is no question on this record that every single person who evaluated or interacted with mr holland during trial proceedings leading up to trial proceedings observed that he was had feelings of hopelessness lethargy that he was feeling depressed what trial counsel failed to do was investigate whether that depression was a result of his circumstances or whether the depression preceded the crime in will record before us depression leads you to shoot someone execution style or non execution style in the course of robert well your honor dr hilton yes does testify and state he teletypes life history including the major depressive episode that he was experiencing experiencing leading up to the crime that led to that that was a factor and why he would choose the did he say to savagely the reason i ask  been listening to these arguments and read affidavits and some of the briefs for more than a quarter of a century i've never really heard the depression commit violent crimes well it certainly wouldn't be a requirement that that mr tulloch showed that in order for it to be mitigating those but but sounds like you were arguing it as it was a factor in the crime as opposed to to humanize him and show what he had suffered unrelated to the crime well that's a factor and th it's one of the factors in the circumstances the events leading up to mr tell us decision to go to georgia mr womack's request evidence he was depressed therefore he went to georgia to commit crimes i don't understand very well your honor what what the evidence showed and what through the late witness testimony of katrina wilson who was a former girlfriend of mr talat what what she could have testified to much she did testify to and state k b s was that that in the months leading up to the crime was on a very significant downward spiral that he had lost weight that he was crying uncontrollably that he was effectively homeless that he was and out of motel but what it does show is that his life was was in a state of deterioration and that his his feelings of depression did not relate soley to the circumstance of the legal circumstances that he was  facing and with the murder charges but that this was this was something he'd experienced his entire throughout his life and that was something the jury should have heard and i also didn't address judge marcus your question about the california robbery which i believe we've had just very adequately in our brace but i'll say quickly that there's there's there was no circumstances under which the california robbery was coming and to this case the  state again as i as i said before did not hold anything back they intended to introduce evidence of the california robbery against mr womack because the evidence was very clear that it was coming and again that he that he had played a part in that crime that was not true for mr talat and had it been true the state certainly would not have waited for the defense to open the door to anything they would have put it on and mr tulloch trial itself so that it was not a reasonable  dangerousness what she said was they didn't know whether it was going to be good or bad and that's that's the problem here that's why there's such and can't be reasonable because they did not explore whether whether this would be helpful for mr talat or not that the evidence and state hevia showed that this would have been a helpful line of mitigation for them to consider and one that dr grant had had encouraged them to consider given mister successful adopt haitian to court found in the brain mind decision where the the argument has a has an impact on the jury's decision we know that this jury was struggling with the sentence of life without parole but based on their three were class for clarification from the court we know that the prosecutor intentionally misstated the law and made an appropriate remarks during defense counsel's closing when they were attempting to correct  is misstatement and the georgia supreme court here failed to consider the record in its entirety they considered each argument on its own individually not in the context of the entire record  and and they also you base that on the fact they didn't they simply didn't say and we consider each of these arguments in the context of the entire record and that that is part of part of their argument yes your hon words you can see if you can dress an issue you've got to specify every factor that you considered or otherwise we will have a federal court determined you committed error about not considering that factor lawyer and i don't that that would be a reasonable standard tempos on the lower courts i think that but i think that we can tell from this opinion that this is the rare case when they did not do that that full consideration that they're required to do  simply for that reason but because they the georgia supreme court said that this error was cured by the jury being instructed on life without parole that we know that the jury remained confused even after that instruction and that's a different appreciate i know where you're coming from and i didn't mean to criticize your argument we will take that case under submission thank you