GOD SAVE TH ESE UNITED STATES, THE GREAT STATE OF FLORIDAAND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN, AND WELCOME T O THE FLORIDA SUPREME CO URT. THE FI RST C ASE ON TODAY'S DOCKET IS MOHAMMED VERSUS THE STATE OF FLORIDA. PARTIES READY?

MAY IT PL EASE THE COURT . TODD DOS ON TODD DOSS O N BEHALF OF MR . MUHAMMAD . HE WAS CONVIC TED IN 197 4 RAN HAS BEEN ON DEATH R OW SI NCE 1974. WE ARE HERE REQUESTING THAT THIS COURT RE MAND F OR AN EVIDENTIARY HE ARING ON MR . MUHAMMAD 'S MOTION TO VACATE. THE BRIEF PROCEDURAL HISTOR Y OF HOW WE GOT HERE IS , MR . MUHAMMAD WAS ORIGINALLY CONVICTED IN 197 5, OF A HOMICIDE INVOLVING SIDNE Y AND LILLIAN GANS. THAT SENTENCE WAS AFFIRMED ON DIRECT APPEAL IN 197 6. THE DISTRICT COURT OF APPEALS FO UND HITCHCOCK ERROR IN 1989 AND REM ANDED FOR RESENTENCING , AND THAT RESENTENCING WAS HELD IN 1996. THIS COURT AFFI RMED THAT O N DIRECT APPEAL.

CHIEF JUSTICE: I THINK WE ARE FAMILIAR WITH THE PROCEDURAL HIST ORY , AND I KNOW YOU HAVE MANY, MANY POINTS THAT YOU HAVE RAISED IN YOUR BRIEF. COULD YOU AD VISE US W HICHPOINTS YOU INTEND TO ARGUE.

THE ONE THAT COMES IMMEDIATELY TO MIND, L AYING OUT THE PROCEDURAL HISTORY , IS THE 8-YEAR DELAY IN PROSECUTING MR. MU HAMMAD , VIOLATED HIS DUE PROCESS RIGHTS.

HOW IS THAT , NOW , YOU ARE RAISING THIS AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM THAT WAS SUMMARILY DENI ED. HOW WOULD THAT, IS THAT , HOW WOULD THAT TRANSLATE INTO WHAT COUNSEL SHOULD ORSHOULD NOT HAVE DONE AND W HYWOULD YOU N EED AN EVIDENTIARY HEARING ON THAT CLAIM?

IT WAS SUMMAR ILY DEN IED ON THE INEFFECT IVE ASSISTANCE OF COUNSEL , ASWELL AS THE COURT HO LDING THAT IT WAS PROCEDURALLY BARRED, BECA USE THIS COURT ADDRESSED AN IS SUE THAT WAS JUST, BRIEFLY BASED O N THE 30- YEAR STAY ON DE ATH ROW B Y MR . MUHAMMAD AND WE SPECIFICALLY REMIND THAT I T REQUIRED A REMAND FOR TIM ELY RESENTENC ING.

ARE YOU CLAIMING ERROR IN THE DENIAL OF AN EVIDENTIARY HEARING ON THAT ISSUE?

YES. BECAUSE

WH AT, IF YOU HAD AN EVIDENTIARY HEARING , TELL M E WHAT WOULD HAVE TRANSPIRED , WHAT EV IDENCE WO ULD YOU HAVE OFFERED AND WHAT, YOU KNOW , HOW THE PROCEEDINGS WOULD HAVE GO NE. ON AN ISSUE LIKE THAT .

THE COURT HAD M ADE FINDINGS THAT MR . MUHAMMAD WAS PARTIALLY RES PONSIBLEFOR THE DELA Y. A PROPERLY PRE PARED EX PERT COULD SHOW THAT MR . MUHAMMAD 'S DIAGNOSIS OF PARANOID SCHIZOPHRENIA, CONTRIBUTED TO ANY PART OF THE DELAY HE MAY HAVE HAD. AS WELL , T HERE WERE INEFFECTIVE ASSISTANCE

THERE WAS NO CHALLENGING THE ACCURA CY OF A TR IAL COURT'S AC COUNT OF THE PROCEEDINGS, IN TERMS OF THE MOTIONS THAT HAD BEEN FI LED AND THOSE THINGS, IS THAT CORRECT?

THAT IS CORRE CT. AS FAR AS LA YING OUT WHAT HAPPENED ON ITS F ACE , YES.

SO IT IS YOUR POSITION THAT DESPITE THOSE THINGS THAT PLAY ED A PART IN THE D ELAY, THAT THE TRIAL C OURTSHOULD HAVE HAD A HEARING, SO THAT YOUR CL IENT COULD HAVE PRESENTED EX PERTS THAT WOULD HAVE SAID THAT THERE WAS ME NTAL CONDITION THAT CONTRIBUTED TO THE DELAY?

IN THE SENSE OF NOT COOPERATING WITH EXPERTS , WAS MENTIO NED BY THE TRIAL COURT. HE HAS AN EX TREME PARANOIA AND DISTRUST. THE INEFFECT IVE ASSIST ANCE ASPECT OF IT, IS THAT THIS WAS NOT TI MELY LITI GATED , AND IT ACT UALLY KIND OF MOVES INTO THE INEFFECTIVE ASSISTANCE CLAIM REGARDING THE CONFLICT OF INTEREST OF THE TRIAL COUNSEL BEINGSCARED OF MR . MUHAMMAD NOT GOING TO SEE MR . MUHAMMAD , NOT DOING A PROPER INVESTIGATION BY NOT TIMELY MOVING THIS THING A LONG, SO THAT WE CAN , THEY COULD HAVE A COMPETENCY HEARING. THEY COULD PROVIDE ALL THE BACKGROUND MATERIALS THAT WERE NEEDED TO THESE DOCT ORS , AND THEN MO VING TO A RESENTENCING .

HASN'T THIS ISSUE US UALLY BEEN TREATED AS A MATTER O F LAW , THAT IS THAT , WIT HOUT THE DENIAL OF THE PASSAGES OF TIME , OF COURSE , THERE WAS ONE DISSENTING OPINION , I BELIEVE JUST ONE , THAT THE U.S. SUPREME COURT L EVEL , WITH REFERENCE TO SUBSTANTIAL DELAY BET WEEN THE TIME OF THE PER SON BEING IMPRISONED OR CONVICTED AND SENTENCED. AND THE TIME OF A PROS M EKT I HAVE ACTUAL - - OF A PERSPECTIVE ACTUAL EXEC UTION UNDER THE SENTENCE , SO I AM HAVING DIFFICULT ANY TERMSOF WHAT AN EVIDEN TIARY HEARING, BASED ON THE S TATEOF THE LAW, THIS COURT A NDTHE U.S. SUPREME COURT HAVING REJECTED SIMILAR CLAIMS AS A MATT ER OF LAW , I AM HAVING SOME DIFFIC ULTY UNDERSTANDING WHERE AN EVIDENTIARY HEARING WOULD GO .

ON ITS FACE IN MOST CA SES , I THINK THAT WOULD BE APPLICABLE, BUT BECAUSE OF MR. MUHAMMAD 'S PECULIAR CIRCUMSTANCE IN REGARDS TO HIS MENTAL ILL NESS , THE PECULIAR CIRCUMSTANCE OF TRIAL COUNSEL MENT IONING SEVERAL TIMES ON THE RE CORD , HOW THEY WERE FEAR FUL OF H IMAND THAT, I THINK , O NE OF THE QUOTES WAS THAT HE WOULD HAVE T O W O RK HIS COURAGE UP FOR A MONTH, TO BE ABLE T O GO SEE MR . MUHAMMAD. THESE ARE THE TYPES OF THINGS THAT PROTRACTED T HIS THAT ARE NOT APPARENT ON THE FACE OF THE RECORD.

HOW DID YOU ALL EG E THESE THINGS, WITH REF ERENCE T O THIS ISSUE OF THE DELAY?

THE DELAY WAS DIRECTLY PREMISED ON THE ELEVENTH CIRCUIT LANGUAGE, RATHER THAN A GENERAL DUE PROC ESS TYPE OF CLAIM , WITHIN T HELEFT CIRC UIT OP INION ISSUED IN 199 - - 1989 , IT STATED THAT WE THERE FOR REMAND THIS CASE TO THE DISTRICT COURT, WITH INSTRU CTIONS T O ENTER AN ORDER GRAN TING THE APPLICATION FOR A WRIT OF HABEAS CORPUS , UNLE SS THE STATE WITHIN A REASONABLE AMOUNT OF TIME , E ITHER RESENTENCING MUHAMMAD IN A PROCEEDING THAT COMPORTS WITH LOCKET , VACATES THE DEATH SENTENCE IMPOSED.

LET ME ASK YOU, WHAT IS THE REM EDY THAT Y OU ARE SEEKING ? IS IT A REDUCTION TO LIFE WITH 25 YEAR S?

A S , YES , AS TO THE CLAIMOF THE DELAY , ABSOLUTELY. THAT IS THE RE QUEST . AS TO THE INEFFECTIVE ASSISTANCE CLAIM, I THINK THAT, IF THE COURT GR ANTED OUR CLAIM ON THAT BASIS , THAT IT WOULD BE A RESENTENCING.

NOW, Y OU ARE TALKING ABOUT A NINE-YEAR P E RIOD IN , IS THAT CORRECT?

SEVEN YEARS F ROM '8 9 TO '96.

DID NOT D URING T HAT PERIOD OF TIME AS I UNDERSTAND IT , THERE WERE SOME ATTE MPTS THAT WERE MADE , TO PROCEED WITH HAVING A HEARING, BUT THAT THAT WAS THWARTED IS THAT NOT CORRECT?

PART IALLY , YES . MR . MUHAMMAD, AT TIMES , HIS COUNSEL L OST PART OF T HETRANSCRIPT AND HAD TO GO TO THE FILE AND GET T HETRANSCRIPT. THAT WAS PART OF THE DELAY . MR . MUHAMMAD NOT COOPERATING , DUE TO HIS PARA NOIA WITH EXPERTS.

WHAT IS THE YEAR SINCE 1996 TO HE RE WE ARE FEBR UARY OF 2000 5, WHAT HAS IN 2005, WHAT HAS GO NE ON I N THIS CASE?

ESSENTIALLY WHEN IT WAS REMANDED BA CK, OBVIOUSLY THERE WAS THE APPOINTMENT OF COUNSEL. THERE WAS A COMPET ENCY HEARING BACK IN 1991 , TO DETERMINE WHETHER OR NOT MR . MUHAMMAD WAS COMPETENT OR NOT , WHICH I S PL ED IN THE INEFFECTIVE ASSISTANCE CLAIM AS, IN REGARD S TO THOSE DOCTORS NOT BEING PROPERLY PREPARED, BUT THAT IS A SEPARATE ISSUE. THEN, AS WELL , THE STATE ACTUALLY TOOK A COUPLE O F CONTINUEANCES.I BELIEVE IT WAS CI TED THAT THE DEFENSE OPPO SED ONE CONTINUANCE.THEN THE DEF ENSE LOST THEIR FILE , AND IN 1995 , WAS WHEN THEY FI NALLY GOT A TRIAL TRANSCRIPT AND STARTED G OINGFORWARD, TAN ENDED UP BEING TRIED IN 1996 , A F ULL SEVEN YEARS LA TER.

HOW MANY DEATH SENTENCE S IS MR . MUHAMMAD U N DER?

TWO IN THIS D ADE CASE. THE COURT IS PROBABLY WELL AWARE THAT HE WAS ALSO SENTENCED TO DEATH IN THE BEST OF YOUR RECOLLECTION HOMICIDE AT FLORIDA IN THE B URKE HO MICIDE AT FLORIDA STATE PRISON.

JUST ON THIS QUE STION OF , IN 1989 HE SHOULD HAVE BEEN RESENTENCED WITHIN A REASONABLE TIME.ARE YOU ALLE GING ANY PREJUDICE THAT OCCU RRED, NOTBECAUSE OF THE LENGTH OF TIME ON DEATH ROW, BECA US E THAT IS THE CLAIM THAT T HESUPREME COURT HAS REJECTED AS CONSTITUTI ONAL CLAIM, B UTAS TO SOMETHING THAT C OULDHAVE BEEN PRESENTED IN THE EARLIER TIME THAT COULDN 'T BE PRESENTED WHEN IT WAS , THERE WAS A SENT ENCING , IN 1996? SO THAT IT WOULD ME ET THE SECOND PRONG OF STRICKLAND?

YES . WITHIN THE MO TION, IT LA YS OUT DIFFERENT PART S OF THE SENTENCING ORDER BY THE TRIAL COURT JU DGE, WHERE HE SPECIFICALLY REFERENCES THE PASSAGE OF TIME . ONE, HE STATES , THE COURT NOTES NOT ONLY THE PA SSAGE OF TIME BETWEEN THE DAVE THE CRIMES AND THE DAY OF THE EVALUATION, BUT , A LSO , THE EFFECT THAT TIME MUST HAVE HAD ON THE DEFENDANT'S MIND. HE WAS ON CUE , W AITING FOR 16 YEARS.

BUT THAT IS REFER RING TO TIME THAT STARTED FRO M THE POINT WHEN THE M U RDER OCCURRED. NOT BETWEEN 1989 AND 1996.

PART OF THAT TIME WAS BETWEEN ' 89 AND ' 96.

JUST FU RTHER , BUT I AM SAYING, OTHER THAN JUST EFFECT O F DELAY , I S THERE SOMETHING THAT HE WAS UNABLE TO PRESENT IN 1996 THA T HECOULD HAVE PRESEN TED IN 1992?

THERE WAS PLED THAT DR . CORWYN'S NOT ES WERE ACTUALLY LOST. SOME EVALUATIONS WERE D ONE BACK IN 19 74 AND 197 5. AS WELL, THE COURT HAD CONSIDERED THE PASS ANGOF TIME IN ASSES SING THE RELIABILITY OF THE OPINIONS OF THE DOCTORS WHO EXAMINED MR. MUHAMMAD.

BUT, AGAIN THAT, IS TA LK ABOUT FROM THE SEVE NTIES UP TO, I MEAN, THAT S AM E I SSUEMIGHT HAVE BEEN THERE OR WAS THERE IF SENTENCING WAS IN '92. HE SOUGHT THE RESENTENCING . THIS WAS NOT SOMETHING THAT THE STATE SOU GHT. HE SOUG HT THE REM EDY OF AN APPEAL AND GOT RESENTEN CING. SO HE GOT THE BENEFIT OF THAT .

THE DO CTORS WHO I N ITIALLY EXAMINED HIM REEX AMINED HIM IN 1991 , PRI OR TO THE COMPETENCY HEARING, AND DR . TUMER EXA MINED HIM IN 199 4. THAT WOULD BE THE INTERIM TIME, IF WE ARE TALKING ABOUT THE PASSAGE OF TIME , AND BOTH COURT AND THE STATE DISCOUNTED THE FA CT OF T HEY SAW HIM FI VE YEARS AG O, TWO YEARS AGO , WHAT CAN THEY CONTRIBUTE NOW , TO US NOW , AND I I AM PARAPHRASING . THAT.

SO GENERALLY THIS IDEA THAT, WHEN A DEFENDANT IS SUCCESSFUL IN AN APPEAL, TOGET A DEATH SENTENCE REVERSED, AND THERE IS A DELAY IN PART CA USED BY T HEMAYBE NOT INTENTIONALLY B UTTHAT PERSON'S PSYCHIATRIC DISORDER , IN THAT CASE CAUSED THE COURT TO RE DUCE A DEATH SENTENCE TO LIFE?

NOT NECESSARILY IN GENERAL.I DON'T THINK THAT THERE IS A BRIGHT LINE THERE. I THINK THIS CASE IS UNI QU E , DUE TO THE ELEVENTH CIRCUIT'S LANGUAGE THERE. I THINK IT IS UNIQUE BECAUSE OF MR . MUHAMMAD 'S MENTAL ILLNESS, AND IT IS ALSO UNIQUE IN THAT THE INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF TRIAL COUNSEL, CONTRI BUTED , IN THAT BY THEM NOT TAKING T HESTEPS NECESSARY TO GET THE PROPER EVAL UATIONS DONE I N A TIMELY MANNER AND IN BEING ABLE TO BR ING IT , EV EN IN TWO OR THREE YEARS , THIS IS A SIGNIFICANT AM OUNT OF TIME , WHEN WE ARE TALKING ABOUT

WHAT EL SE DO YOU CONT END THAT DEFENSE COUNSEL COULD HAVE DONE? YOU KEEP SA Y ING THAT T HEY DIDN'T HAVE THESE EVALUATIONS DONE IN A TIMELY MANNER, BUT IF THE DEFENDANT WAS NOT COOPERATING WITH THE EXPERTS , WHAT MORE COULD DEFENSE COUNSEL HAVE DONE , IN ORDER TO GET THESE DONE IN A TIMELY FASHION?

THEY COULD HAVE PROVIDED BACKGROUND MATERI AL SO THAT THESE EXPERTS COULD HAVE HAD CORROBORATING E V IDENCE OF MR . MUHAMMAD 'S

BUT IN THE COURSE OF EXAMINATION, I AM HAVING A HARD TIME MAKING THE CONNECTION BETWEEN YOUR ARGUMENT AND HOW DEFENSE COUNSEL COULD HAVE DONE IT DIFFERENTLY.

PART OF PROV IDING THOSE PROPER BACKGROUND MATE RIALS IS GOING AND ACTUALLY SEEING MR. MUHAMMAD. THERE IS EVIDEN CE IN T HERECORD OF THEM NOT EVEN VISITING FOR SIX MO NTHS PRIOR TO THE RESE NTENCING. AND THAT DEVELOPS THE T RUSTTHAT IS THERE, SO THA T SOMEONE THAT IS A PARA NOID SCHIZOPHRENIC CAN TRUST THEM ENOUGH TO G IVE THEM THE INFORMATION THAT CAN FURTHER THEM ALONG.

THEY DIDN'T GO TO SEE H IMBECAUSE HE HAD BEEN VIOLENT WITH THEM ? WHAT WAS THE RE ASON T HAT THEY DID NOT WANT TO GO AND SEE HIM?WAS THAT SOMETHING BASED ON HIS ACTIONS?

ON THE RECO RD , THEY JUST SIMPLY STATED THAT THEY WERE SCARED OF H IM. I WOULD IMAGINE THAT PART OF IT WAS IN REGAR DS TO THE BURKE HO MICIDE THAT OCCU RRED ACTUALLY THERE AT FLOR IDA S TATE PRISON BUT IT I S NEVER EXPLICITLY STATED. THE MATERIALS THAT CAN B E GIVEN ARE THE TY PES OF EVIDENCE THAT GEN ERALLY CORROBORATES SOME ONE'S LIFE HISTORY , AND THEIR REC ORD IS REPLETE WITH

IF YOU ARE CONCERNEDABOUT THE MATERIALS THAT WERE GIVEN, WERE THEY GIVEN SIX YEARS LATER, AS OP POSED TO A MONTH A FTER THE ELEVENTH CIRCUIT SAID HE NEEDED A NEW HEARING? BECAUSE IT ST ILL B O THERSOME TO ME THAT YOU ARE ARGUINGTHAT THERE WAS SOMETHING THAT THEY COULD HAVE DONE , WHEN IT SEEMS TO ME THAT, FROM THIS RECORD, WHAT IT DEMONSTRATES IS THAT THE DEFENDANT WAS V ERY OBSTRUCTIVE , HE WAS AN OBSTRUCTIONIST THE, RE ALLY.

WELL , WHAT THEY COULD HAVE DONE, AND SOME OF THIS WAS NEVER GIVEN, S UC H AS THEY DIDN'T HAVE, THIS IS FROM THE COMPE TENCY HEA RINGTHAT WAS HE LD IN ' 91 AND DR. McCLAIN WAS TESTIF YING IN THE RECORD AT 17 24. IT INDICATES HE DIDN'T HAVE THE TRIAL TRANSCRIPT S TO REVIEW. AT 17 55 , THAT DR . MILLER'S REPORT WAS READ FOR THE FIRST TIME THAT D AY , THAT HAD BEEN A PRIOR PSYCHOLOGICAL EVALUATION,THAT HE WAS UNAWARE OF THE DEFENDANT'S FAMILY HISTO RY OF MENTAL ILLNESS AND DID NOT RE VIEW MAN Y OF T HE RECORDS , BECAUSE HE WAS NOT PROVIDED THEM IN A TIMELY BASIS. THEN , DR . FI SHER EVEN AFTER THIS PROBLEM IN '9 1, IN 1996 , AT THE RESENTENCING , DR . FISHER AT 256 6, TESTIFIEDTHAT HE WAS GIVEN ONE TENTH OF THE PRISON HIS TORY , AND THEN THE STATE UTILIZED TO ITS ADVANTAGE, IT TO S HOW MANY OF THE FACTS THAT DR . FISHER DID NOT KNO W, THAT HE HAD NEVER REVIEWED THE 19 81 TRANSCRIPTS OF THE BU RKE HOMICIDE THAT WAS DI RECTLY RELEVANT TO THE MENTAL STATE. HE WASN'T FAMILIAR WITH THE FACTS OF THE 1974 CASE, THAT HE WAS ACTUALLY TESTIF YING ABOUT, AND THAT IS AT THE RECORD OF 25 80 AND 2583.

CHIEF JUSTICE: YOU ARE INYOUR REBUTTAL, AND I DIDN'T KNOW IF THERE WERE ANY OTHER POINTS THAT YOU WANTED TO TOUCH ON OR IF YOU WA NTED TO JUST SA VE YOUR TIME FOR REBUTTAL. AISLE ONLY MENTION A COU PL E OF THE OTHER THINGS THAT WEREN'T PROVIDED THAT CAME OUT IN THAT , AND ILL SAVE THE REST FOR MY REBUTTAL TIME. IT WAS THAT DR . CARBONEL WAS NOT CONT ACTED BY COUNSEL UNTIL TWO WEEKS BE FORE RESENTENCING, IN THE RECORD AT 28 83, DIDN'T REVIEW T HERECORDS FOR THE SEVEN YEARS , PRIOR TO TESTIFYING. THAT WAS IN THE RECORD AT 2893. THEN WE HAD DR . McCLAIN, WHO TESTIFIED HIS EVALUATION WAS GROSSLY INADEQUATE, AND THAT WAS AT 2 9 80. HE WAS HINDE RED BECAUSE OF TROUBLE GETTING JAIL RECORDS , AND HE DIDN'T HAVE TIME TO READ ALL OF THE RECORDSBECAUSE OF THE WA Y THEY WERE PROVIDED, AND THAT IS IN THE RECORD AT 28 87 AND 2997. I WILL SAVE THE REST OF MY TIME FOR REBUTTAL. THANK YOU.

MAY IT PLEASE THE COURT. SANDRA JAGGARD , ASSI STANT ATTORNEY GENE RAL ON BEHALFOF THE STATE. AS IS TYPICAL OF CCR PLEADINGS, WHICH IS WHAT THIS IS, THIS CLA IM WAS RAISED, BOTH AS INEFFECTIVE NESS CLAIM AND AS A MERITS CLAIM. COUNSEL DID, IN FACT, LITIGATE THE ISSUE OF DELAY AT RESENT ENCING. AND THAT WAS, IN FACT , RAISED AND REJECT ED ON DIRECT APPEAL, AND THI S CLAIM IS BA RRED, AND COUNSEL IS NOT INEFFE CTIVE FOR FAILING TO DO WHAT HE DID. SECONDLY, THERE WAS NO E IGHT OR SEVEN -YEAR DELA Y. THE DISTRICT COURT DIDN'T GET AROUND TO ISSUING ITS ORDER ON HABEAS , UNTIL JULY OF '96, AND THE RESENTENCING OCCURRED IN JAN UARY , EXCUSE ME, JULY OF '90 , AND THE RESENTENCING OCCURRED IN JANUARY OF '96 , SO IT IS FIVE AND-A-HALF YEARS , DURING WHICH COUNSEL AND THE DEFENDANT CAUSED THE DELAY. THE DEFENDANT RE FUSED TO B E EVALUATED BY MALE EX PERTS. HE INSISTED U PON BEING EVALUATED BY FEMALE EXPER TS, AND THEN COUNSEL , INST EAD OF LITIGATING A P A YMENT I SSUEIN THIS CASE , CHOSE TO LITIGATE THE ISSUE OF P AYMENT GENERALLY. COUNSEL REFUSED TO PROVIDE DISCOVERY . DESPITE NUME ROUS MO TIONS TO COMPEL. AND WHERE THE DEFENDANT CAUSES THE DELAY , HE SHO ULD NOT BE HEARD TO COMP LA INABOUT THE DELAY, AND IN FACT , IT IS PRETTY

HE SEEMS TO BE AR GUING THAT COUNSEL CAUSED THE DELAY , AND DID SO IMPROPERLY , AND HE SEEM S TO BE ARGUING THAT THERE SHOULD BE A HEARING TO EVALUATE WHAT MR . WEASENBOURNE AND HIS WIFE DID OR DID NOT DO. THAT SEEMS TO BE AN UNDER CURRENT , SO WOU LD YOU RESPOND TO THAT PART , NOT JUST PURE DELAY BUT THAT HIS LAWYERS SHOULD NOT HAVE CAUSED THIS DELAY.

THAT SHER NL NOT H O W I HAVE READ THE PLEADINGS T HUS FAR.IT HAS BEEN THE STATE HAS CAUSED THE DELAY.

YOU STARTED OUT YOUR DISCUSSION SA YING IT WAS BOTH ON THE MER ITS AND AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, SO AS TO THE INEFFECTIVE ASSIST ANCE OF COUNSEL, PART OF IT, WHAT IS HE ALLE GING THAT COU NSELFAILED TO DO TO BRING HIM TO RESENTENCING?

HE IS ALLEGE ING COUNSEL FAILED TO OBJECT TO THE STATE'S CONTINUEANCES, WHICH WERE CAUSED BY THE FACT THE DEFENSE WASN'T PROVIDING DISCOVERY .

AND WAS I T , WAS IT DEFENSE COUNSEL THAT WAS NOT PROVIDING DISCOVERY ? WOULDN'T THAT BE PART OF THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

AND THE PROBLEM IS WE HAVE ALREADY LI TIGATED THE DELAY ISSUE ON DIRECT APPEAL , AND SIMPLY REPACK AGING IT AND CHANGING THE THEORY , DOES NOT MAKE THE CLAIM PROCEDURALLY BARRED. THIS COURT HAS ALREADY REJECTED THE DELAY CLAIM.

HERE, WELL , THIS COURT REJECTED THE DELAY CLAIM , AT A POINT IN TIME , BUT IN FACT , ONE OF MY CONCE RN S ABOUTTHIS CASE , IS THE PERIOD THAT HAS NOW TA KEN SINCE 1998, W HEN THIS CASE WAS HERE , AND NOW IT IS 2005. IT JUST , I HAVE STATED IN THE PAST , AND I , PARTICULARLY I AM CONC ERNED IN A CASE IN WHICH THE MURDER WAS IN 1974 , THA T ATSOME POINT IN TIME THERE , IS JUST LOGICA LLY , A BREAKDOWN IN PRO CESS , ITSELF . BY REASON OF THE LEN GTH O F TIME THAT THE STATE OF FLORIDA IS MAINTAIN ING THIS MAN ON DEATH ROW . AND, I M E AN , WHAT, WH ERE WE ARE IN THIS PROCESS NOW , IS THAT, IF I T GOES , IF IT JUST GOES FOR WARD , THEN , THERE WILL NOT BE, THE CASE WILL JUSTIN TO GO FORWARD FOR ANOTHER EIGHT OR N INE YEARS , AND I JUST WONDER , IS THERE NOT A PO INT IN TIME WHEN WEHAVE GOT TO SAY THAT PROCESS HAS JUST FA ILED HERE?

NOT WHEN THE DEFENDANT I S C AUSING THE DELAY, WHICH IS WHAT HAPPENED IN THE POSTCONVICTION PROCEEDINGSAS WELL.WE HAVE PROTRA CTED PU BLIC RECORDS LITIGA TION. THEY FI LED A SHELL MOTION. THEY FILED A N AMENDED MOTION , MORE PROTRA CTED PUB LI C RECORDS LITIGATION. THE DEFENDANT IS THEN GIVEN LEAVE TO FILE A SE COND AMENDED MOTION. JUST DOESN'T DO IT. AND SO TO RE WARD A DEF ENDANT FOR DELAY ING, SHOULD NOT HAPPEN.

BUT SHOULDN'T THERE BE SOME PRIO RITY GIVEN TO THESE CASES. WE HAVE GOT IN THIS SY STEM NOW, OVER 25 OF THESE CASES THAT DATE PRIOR TO 1980 , AND HERE, THIS IS 31 YEARS A GO, THAT THIS OC CURRED . AT SOME POINT IN TIME, HOW CAN THE DEATH PENALTY , REALLY, MAKE ANY SENSE IN THIS PROCESS .

BECAUSE WE SHOULDN'T REWARD DEFENDANTS FOR THEIR OWN DELAY. WHICH IS WHAT THIS CASE IS ABOUT. THIS DEFENDANT HAS DELAYED THESE PROCEEDINGS T HAS N OTBEEN THE STATE. WE ATTEMPTED TO MOVE THIS FORWARD. WE ATTEMPTED TO TAKE HIM TO RESENTENCING. HE REFUSED. WHEN HE GOT TO THE TIME O F RESENTENCING, HE, THEN , ACTED UP , BE CAUSE HE DIDN'T WANT TO BE AT RESENTENCING! AND ENDED UP BEING THROWN OUT OF THE COURT ROOM EVE RY SINGLE DAY OF T HIS TRIAL, AND TO REWARD T HESEDEFENDANTS FOR DELAYS , JUST ENCOURAGES THEM T O CONTINUE THESE DELAYS.

LET ME GET BACK TO THE ISSUE OF INEF FECTIVE ASSISTANCE OF COUNSEL. YOU SEEM TO AG REE THAT COUNSEL DELAYED IN PROVIDING DISCOVERY. YOUR OPPONENT MAKES OT HER CLAIMS AB OUT COUNSEL , DEFENSE COUNSEL'S DELAY IN BRINGING THIS TO RESENTENCING. I DON'T SEE THAT DEFENSE COUNSEL EVER FILE D A MOTION TO ENFO RCE THE MA NDATE IN THE ELEVENTH CIRCUIT THAT HE BE RESENTENCED WITHIN A REASONABLE PERIOD OF TIME. WHY IS N'T AN EVIDENTIARY HEARING NECESSARY , TO BRING OUT THE FACTS RE LEVANT TO WHETHER COUNSEL WAS INEFFECTIVE IN SEEKING AN EXPEDITED OR AT LE AST A SENTENCING WITHIN A REASONABLE PERIOD OF TIME ?

THERE IS NO PREJUDICE , WOULD BE ONE REASON , AND THE ONLY ALLEGED PREJU DICE WAS THAT THE STATE WAS ALLOWEDTO CROSS-EXAMINE THE EXPERTS ABOUT THE DELAY. HOWEVER , ALL BUT ONE OF THE DEFENDANT'S EXPERTS H ADEXAMINED HIM BE FOR E THE RESENTENCING WAS EVER ORDERED. SO THERE IS NO PREJUDICEFROM THE DELAY. AND

ARE YOU SAYING THERE IS NO PREJUDICE , BEC AUSE HE WAS UNDER A CONVIC TION FOR MURDER, ANYWAY , HE WOULD HAVE BEEN IN JAIL , ANYWAY , BECAUSE HE WAS UNDER AN OTHER DEATH SENTENCE , SO HE WOULD HAVE BEEN ON DEATH ROW, ANYWAY, OR PREJUDICE , NOT PREJUDICE FOR OTHER REASONS?

WELL, IT NE EDS TO PREJUDICE THE CASE , AND , YE S , HE WAS ON DEATH ROW ANYWAY AND WOULD HAVE BEEN ON DEATH ROW ANYWAY AND WOULD HAVE BEEN CONV ICTED ANYWAY , BUT IT ACTUALLY PREJUDICED THE PRESENTATION OF YOUR CASE, WHICH DID NOT HAPPE N IN T HIS CASE. EVEN THE DOCTOR WHO LOST HIS NOTES, AND THERE IS NO SHOWING , EVEN IN THE MOTION , NOT EVEN AN ALLEGATION , THAT THAT OCCURRED DURING THE TIME PERIOD BETWEEN THE ORDERING OF THE RESENTENCING , WHICH IS THE ONLY DELAY T HEY COMPLAINED ABOUT, AND THE ACTUAL CONDUCT OF THE RESENTENCING WAS COMPLETELY ABLE TO TESTIFY BECAUSE HE REMEMBERED MR. KNIGHT. AND WAS ABLE TO TESTIFY ABOUT HIM. THERE WAS NO PREJUDICE ALLEGED.IT WAS NOT CONCLUSIVELY REFUTED BY THE RECORD, AND WHE RE THE DEFENDANT I S CAUSING THE DELAY AND IT IS NOT LIKE THE DEFENDANT WAS OBJECTING TO THIS , W HEN THE DEFENDANT GETS TO RESENTENCING, THE DEFENDANT, THEN, ACTS UP THE WH OLE TIME , AND WHILE MY O P PONENT SAYS THAT THAT IS DUE TO HIS MENTAL ILLNESS , THE TRIAL COURT HELD COMPETENCY HEARINGS AND FOUND THAT IT WAS NOT , THAT IT WAS WILL FUL CONDUCT ON THE PART OF THE DEFENDANT, TO DELAY T HESEPROCEEDINGS! WITH RE GARD TO THE CONF LICT OF INTEREST CLAIM , THEY NEVER ALLEGED THAT THERE WAS ANY AD VERSE EFFECT FROM T HEFACT THAT COUNSEL WAS AF RAID OF HIS CL IENT , ANONYMOUS ALLEGE AD VERSE EFFECT , IN ORDER

DID COUNSEL EVER MOVE T O WITHDRAW IN THIS SITUATION? I MEAN , THIS WAS A SI TUATION , A HUSBAND AND WIFE TEAM THAT WAS REPRESENTING T HEDEFENDANT, CO RRECT ?

YE S.

AND THE WIFE , AND THE HUSBAND WAS AF RAID FOR THE WIFE TO GO INTO ANY KIND OF ROOM WITH THE DEFENDANT? IS THAT CORRECT?

ALONE. THAT WAS WHAT HE EXPRESSED ON THE RECORD.

SO WHAT , WAS THERE EVER ANY MOTION, THEN, TO BE REMOVED FROM THIS CASE AND HAVE OTHER COUNSEL APPOINTED?

I DON'T BELI EVE SO.

AND SO WH Y NOT , UND ER THESE CIRCUMSTANCES , SHOULDN'T COUNSEL HAVE BEEN OBLIGATED TO DO THAT, I F THEY WERE REALLY AFRAID TO COMMUNICATE WITH THEIR CLIENT?

WELL , NU MBER ONE, IT IS NOT A CONFLICT OF INTERE ST. A CONFLICT OF INTE REST IS JOINT REPRES ENTATION.

WELL, THEY ARE MAKING CLAIMS OF INEFF ECTIVE ASSISTANCE HERE, FOR THEIR FAILURE TO COME AND VISIT THE DEFENDANT AND THOSEKINDS OF THINGS, SO WHY UNDER THESE CIRCUMST ANCES , ISN'T COUNSEL REQUIRED TO D O MORE THAN JUST SAY I AM AFRAID OF HIM AND I AM N OTGOING TO GO SEE HIM.

THAT WAS NOT THE CLAIM RAISED BELOW. THE CLAIM R AISED BELO W WAS ONLY A CLAIM OF CONFLICT OF INTEREST. AND IT IS NOT A CONFLICT OF INTEREST, AND ONE HAS TO ALLEGE AN ADVERSE EFF ECT.

WELL

AND THERE WAS NO ALLEGATION OF AN ADVE RSE EFFECT.

WELL , WE GET BACK TO THE ORIGINAL ARGUMENT THAT HE I S MAKING, THAT PART OF THE DELAY IN THIS SITUATION , IS THAT COUNSEL WERE AFRAID TO GO SEE THEIR CLIENT .

I DON'T AG REE THAT THAT WAS WHAT WAS ALLEGED BELOW. WHAT WAS ALLEGED BELOW WAS MERELY COUNSEL FA ILING TO ENFORCE THE MANDATE , WHICH RESULTED IN THIS ALLEGED PREJUDICE ABOUT THE DOCTORS. IT WASN'T ABOUT GO ING TO S EETHE DEFENDANT. AND THAT IS ONE OF THE PROBLEMS WITH THIS CASE , IS THAT THE MOTION WAS NEVER SUFFICIENTLY PLED. WE HAVE A L ARGE N UMBER OF CONCLUSORY ALLEGA TIONS.

YOUR POSITION IS THAT THEY ARE TAKING A DIFFERENT LEGAL ARGUMENT ON THE AP PEAL , AS OPPOSED TO WHAT WAS ACTUALLY PRESENTED IN THEMOTION THAT WAS PRESENTED TO THE TRIAL JUDGE?

YES.

THAT IS WHERE YOU ARE GOING.

AND THE ONLY CLAIM ABOUT COUNSEL BEING AFRAID OF THE DEFENDANT AND ONE OF THE REASONS COUNSEL WAS AFRAID OF THE DEFENDANT, WAS THAT THE DEFENDANT AT THE COMPETENCY HEARING, GOT UP , THREW OVER A TABLE AND WENT CHARGING AT THE STATE ATTORNEYS. THIS IS SO MEONE WHO KILLED TWO PEOPLE . WHO, THEN , WAS PUT ON DEATH ROW AND STABBED A G UARD 23 TIMES BECAUSE HE DIDN'T GET TO VISIT WITH HIS MOTHER,AND IT WASN'T EVEN ONE OF THE GUARDS INVOL VED IN NOT ALLOWING HIM TO VISIT WITH HIS MOTHER. THAT HE STABBED TO DEAT H. THIS PERSON IS A LIT TL E FRIGHTENING. AND IT IS NOT A CONFLICT OF INTEREST TO HAVE SOMEONE AND BE AFRAID OF THEM , PARTICULARLY WHEN YOU DON'T PLEAD ADVERSE EFFECT , WHICH IS CLAIM THAT WAS RA ISED , AND THEREFORE IT W ASPROPERLY SUMMARILY DENI ED. THE COURT HAS NO FUR THERQUESTIONS, THE STATE WOULD RESPECTFULLY REQ UEST YOUAFFIRM. THE STATE ARGUED THAT T HERE WERE COMPETENCY HEARINGS INVOLVED REGARDING MR . MUHAMMAD BEING REMOVED FROM THE TRIAL. THAT WAS NOT ENTIRELY ACCURATE. WHAT WOULD HAPPEN IS THAT , PRIOR TO EVERY HEARING, ANY EXPERT TESTIMONY, THE JUDGE BROUGHT MR. MUHAMMAD IN AND WOULD, HIMSELF , QUES TION MR . MUHAMMAD AND THEN DETERMINEWHETHER OR NOT HE WAS GOING TO BE ALL OWED TO STAY IN THE COURTROOM OR NOT. THE TRIAL COUNSEL ACTU ALLY ASKED FOR COMPET ENCY HEARINGS AT THAT POINT, AND THE JUDGE INDICATED THAT HE WASN'T GOING TO ALLOW IT, THAT MR . MUHAMMAD SEEMED COMPETENT, AND THAT H E THOUGHT HE WAS TR YING TO SOW THE SEED OF ERROR INTO THE RECORD , RATHER THAN GIVING A COMPETENCY HEARING AS COUNSEL HAD REQU ESTED .

THERE WERE NO COMPETENCY HEARINGS?

THERE WAS IN 1991. NOT AT THE 196 RESENTENCING . IT WAS SI MPLY THAT MR . MUHAMMAD WOUL D BE BROU GHT IN , WOULD ENGAGE IN A COLLOQUY WITH THE COURT, AND THEN T HEQOURT , B ASED ON THAT A NDTHEN THE COURT, BASED ON THAT COLLOQUY , WOULD DECIDE WHETHER MR. MUHAMMAD WOULD BE ALLOWED TO REM AIN IN THE COURTROOM , AND HE WAS NEVER ALLOWED TO REMA IN IN THE COURTROOM.

WHAT BASIS DID COUNSEL OFFER TO THE TRIAL COURT, AS REASONABLE BASIS TO REQUESTAN ADDI TIONAL COMPETEN CY EVALUATION, GIVEN THAT OVER THE PAST 20 YEARS H E HAD NOT BEEN FO UND INCOMPET ENT?

WELL , HE ACTUALLY WAS FOUND INCOMPETENT PRIOR TO THE 1974 TRIAL , IN OTHER JUDICIAL PROCEEDINGS, BUT INTHIS CASE HE NEVER WAS.

SINCE '74 AND WE A RETALKING ABOUT A '8 96 PROCEEDING. SO 22 WE ARE TALKING ABOUT A '96 PROCEEDING. SO 22 YEARS , HE HAD NOT BEEN FOUND INCOMPE TENT. WHAT DID TRIAL COURT, WHEN THEY REQUESTED A COMPETENCY EVALUATION, WHEN THEY WEN T TO THE TRIAL COURT AS A REASONABLE BASIS TO REQUEST THE PROCEEDING AND GATHER EXPERTS AND DO THEIR EVALUATION?

BASED ON THEIR INABILITY TO COMMUNICATE WITH HIM. BASED ON THE COURTROOM BEHAVIOR THAT WAS EXHIBITED , WHENEVER HE WAS SPEAKING TO THE TRIAL COURT , AND I BELIEVE ON THE RECORD , THEY ACTUALLY AS KED THE TRIAL COURT FOR ADVICE AS TO HOW TO DEAL WITH MR . MUHAMMAD . AND THOSE WERE THE FAC TORSTHAT WERE ELIC ITED , AS TO THERE BEING A NEED FOR COMPETENCY HEARING D URING THE RESENTENCING.

SO THERE WAS NOTHING FROM THE JAIL RECORDS, NOT TAKING MEDICATION, ACTING OUT I N JAIL, CUT TING HIMS ELF , EVIDENCE OF HALLUCINATION O R ANYTHING OTHER THAN WHAT TRIAL COUNSEL COULD OBSERVE AS THE TRIAL COURT COULD, ALSO, OBSERVE IN THE HEARING?

OTHER THAN THE INABI LITY TO COMMUNICATE, YES .

JUSTICE LEWIS , DID YOU HAVE?

AS T O THE CONFLICT OF INTEREST, COUNSEL HAD INDICATED THAT THERE HAD ONLY, A CONFLICT OF INTEREST BASED ON DUAL REPRES ENTATION. I WOULD DISAGREE WITH. THAT THE TRIAL COURT, A LSO , CLAIMED THAT IN THEIR I N THEIR SENTENCING ORDER , THE RECORD AT 4 47 , THAT THE TRIAL COURT STATED THERE, QUOTE, A CLAIM OF CONFLICT OF INTEREST MUST BE BASED ON DUAL REPRESENTATION AND NOT ON CONFLICTS WITH AN ATTORNEYS SELF-INT EREST AND THEN THEY SIGHT TO B E AST VERSUS COLLINS, A UNITED STATES FI FTH DISTRICT COURT OF AP PEALS CASE , 55 S THIRD 1258. THAT CASE ACTUALLY LI ST S A LITANY OF SELF-INTEREST. WHAT THE COURT, THE RE, WAS DECIDING WAS WH ETHER THERE SHOULD BE A PER SE T YPE O F RULE AS IN CUYLER VERSUS SULLIVAN, OR A RULE THAT WAS SIMPLY BASED ON INEFFEC TIVE ASSISTANCE UNDER STRICK LAND, WHEN DETERMINING WHETHER OR NOT A CONFLICT OF INTERE ST, BASED UPON THE ATTORNEY'S SELF-INTEREST , WAS A COLORABLE CLAIM. WE HAD LISTED OUT A, IN CLAIM NUMBER T HREE , QU ITE A FEW THI NG INS REGA RDS TO INEFFECTIVE ASSISTANCE FEW THINGS , IN REGARDS TO INEFFECTIVE ASSISTANCE OF COUNSEL.I HAD ALRE ADY DELINEATED A LIST OF THINGS REGARDING THE UNLITTLENESS OF COUNSEL TO GO ABOUT THE UNWILLINGNESS OF COUNSEL TO GO ABOUT OBTAINING A PROPER BACKGROUND AND LIFE HIST ORY , SO THAT THERE COULD BE RELIABLE TESTIMONY .

CHIEF JUSTICE: YOUR TIME HAS EXPIRED.

THANK YOU.

CHIEF JUSTICE: IF YOU WANT TO MAKE A CONCLU DING REMARK.

NOTHING THAT I HADN'T ALREADY SAID. THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH.