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x7XX6.V"G($,}hG PE37hP6s-_5/,]_ PE37P/8wC;,}Xw PE37XP tt,b5/, b_ pi77zC;, EXz_ pi7X9dCCzC"4|J~ ^;C]ddCCCdCCCCddddddddddCCdxN`xoCCCddCtkttk`||>M|kt|`|tYkttttkddddCdddddCddddddddo8dddddYYYYYN8N8N8N8oddddooooddpddddxodddXXYYXYYXddddddooL8N8N8N8r`o8P8N8ppoddXXYpLoNpLoNPDCopoopodXYXo8oYoNCdddoCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCdUUddddddFddddFCCssd44ddzzddd~ooCsdF"dsd9dCCzCddoddCdYds`zUvdddCCCCtkzbkkk|tN>|ktk|tzbzbktkt|zbzNY88YYYzYzzzzCCdddddddzzzzzzzzzzzzzzzzzzzNNNNNNNYYYYYYYYYYYYYYYYYYYY888888888888YYYYYYYYYYYYYYYYYYYzzzzzzzzzzzzzzzzzzzzCzNzNddYC\   pxtll\tll@\@\`L2>y X #Xw PE37}XP#  X01Í ÍX81Í ÍXX` `  ")hh07 IN THE CIRCUIT COURT OF THE(#` ` `  ")hh07THIRTEENTH JUDICIAL CIRCUIT, IN ` `  ")hh07AND FOR HILLSBOROUGH COUNTY, ` `  ")hh07FLORIDA ` `  ")hh07CASE NOS. 868931A ` `  ")hh07>ppE8615176A STATE OF FLORIDA, Plaintiff, v. RUDOLPH HOLTON, Defendant. ______________________/ T &DEFENDANT'S THIRD AMENDED MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST $FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING   Y RUDOLPH HOLTON , Defendant in the abovecaptioned action, submits this amendment to his Fla. R. Crim. P. 3.850 motion and respectfully moves this court for an order, pursuant to Fla. R. Crim. P. 3.850, to vacate and set aside the judgments of conviction and sentences, imposed upon him by this court. In support thereof, Mr. Holton, through counsel, respectfully submits as follows:  I. A. 1. a.(1)(a) i) a) 1. a. i.(1)(a)(i) 1) a)1.` ` On July 20, 1992, Mr. Holton filed a Rule 3.850 motion to vacate judgment of conviction and sentence, including the sentence of death imposed upon him by this court. On January 11, 1993, Mr. Holton filed an amended Rule 3.850 motion. On April 15, 1998, Mr. Holton filed a single issue amendment to his previous Rule 3.850 motions. This issue<&0*0*0* contained a newly discovered evidence claim that was required to be brought within a year of the disclosure of evidence. On July 1, 1998, Mr. Holton amended his Rule 3.850 motion. 2.` ` All allegations presented in his previous Rule 3.850 motions are incorporated herein by specific reference, and no matter presented in the Rule 3.850 motion is waived or abandoned by submission of this amendment. 3.` ` Counsel in good faith represents at the outset of this pleading that Mr. Holton's pleading is incomplete. Investigation into Mr. Holton's case is continuing. Mr. Holton continues to uncover evidence that will exonerate him. Mr. Holton therefore requests leave to supplement his claims with additional facts as they become available, to add claims, and to provide memoranda of law in support of his claims for relief. 4.` ` Mr. Holton also continues to request the court to conduct an evidentiary hearing on his claims. Mr. Holton's claims involve issues requiring full and fair Rule 3.850 evidentiary resolution. See, e.g., kHeiney v. Dugger, 558 So. 2d 398 (Fla. 1Heiney v. Dugger, 558 So. 2d 398 (Fla. 1990)kHeiney v. Dugger, 558 So. 2d 398 (Fla. 1990); iMason v. State, 489 So. 2d 734 (Fla. 198Mason v. State, 489 So. 2d 734 (Fla. 1986)iMason v. State, 489 So. 2d 734 (Fla. 1986). A Rule 3.850 litigant is entitled to an evidentiary hearing unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850; Mordenti v. State, 711 So. 2d 30 (1998); iLemon v. State, 498 So. 2d 923 (Fla. 198Lemon v. State, 498 So. 2d 923 (Fla. 1986)iLemon v. State, 498 So. 2d 923 (Fla. 1986). Under this standard, the allegations in Mr. Holton's Rule 3.850 motion clearly require an evidentiary hearing.0*(( s2PROCEDURAL HISTORYă  1. a. i.(1)(a)(i) 1) a) 1. a. i.(1)(a)(i) 1) a)1.` ` The Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, entered the judgments of conviction and sentence under consideration. 2.` ` Mr. Holton was charged by indictment dated July 9, 1986, with one count of first degree murder and related offenses. He pleaded not guilty (R. 862). 3.` ` Mr. Holton was tried by a jury December 15, 1986. The jury rendered a verdict of guilty (R. 862). 4.` ` After a penalty phase, the jury, by a vote of seven (7) to five (5), recommended a death sentence for the first degree murder conviction (R. 784).  Yb 5.` ` On December 5, 1986, the trial court ore tenus imposed a sentence of death on the count of first degree murder and a sentence of thirty (30) years imprisonment on the count of arson (R. 85961). The sentencing order, however, was not entered until February 12, 1987 (R. 97678). 6.` ` On direct appeal, the Florida Supreme Court affirmed Mr. Holton's convictions and sentences, after clarification on partial grant of rehearing. Holton v. State, 573 So. 2d 284 (Fla. 1990). The United States Supreme Court denied certiorari on June 3, 1991. Holton v. State, 111 S. Ct. 2275 (1991). 7.` ` Mr. Holton filed his initial postconviction motion on July 20, 1992, before his twoyear date, in order to compel public records production. Thereafter, Mr. Holton filed an amended motion for post conviction relief on January 11, 1993. Because Mr. Holton had not received many public records, he requested leave to amend.l$0*((Ԍ8.` ` On April 15, 1998, Mr. Holton filed a Rule 3.850 motion regarding the newly discovered evidence of FBI crime lab analysts' tampering and false testimony in capital cases. 9.` ` On July 1, 1998, Mr. Holton filed his second amended Rule 3.850 motion.  YH This motion included claims of ineffective assistance of counsel, Brady,YH Y ԍBrady v. Maryland, 373 U.S. 83 (1963).Y prosecutorial misconduct and newly discovered evidence. Mr. Holton alleged facts in support of his claim of actual innocence.  Y   10.` ` In early December, 1998, this Court held a Huff] y Y ԍHuff v. State, 622 So. 2d 982 (Fla. 1993).] hearing on Mr. Holton's second amended motion for postconviction relief.  11.` ` On December 22, 1998, Mr. Holton filed a Motion to Inspect, Examine and Test Evidence. Specifically, Mr. Holton sought to inspect and test, through mitochondrial DNA analysis, the three (3) hairs found on the victim's mouth at the scene of the crime.  12.` ` On January 29, 1999, this Court granted Mr. Holton an evidentiary hearing on several issues, including ineffective assistance of counsel and newly discovered evidence.  13.` ` On February 1, 1999, undersigned, after resigning her employ with the Capital Collateral Counsel Middle Region (CCCMR), filed a motion to remove CCCMR and appoint substitute counsel.  14.` ` On February 16, 1999, the State filed a motion for rehearing regarding the scope of the evidentiary hearing.  *0*((Ԍ15.` ` On March 2, 1999, this Court granted undersigned's motion to remove CCCMR and appointed undersigned as counsel for Mr. Holton. 16.` ` CCCMR filed a notice of appeal of this Court's order regrading substitution of counsel on March 10, 1999. 17.` ` On March 26, 1999, Mr. Holton, through undersigned counsel filed a response to the State's motion for rehearing on the scope of the hearing. 18.` ` After undersigned accepted a position with the Capital Collateral Counsel for the Northern Region (CCCNR), on May 17, 1999, Mr. Holton filed a motion to transfer representation to CCCNR. 19.` ` On June 3, 1999, the Florida Supreme Court relinquished jurisdiction to this Court in order to determine the representation issue. 20.` ` Thereafter, on June 9, 1999, this Court transferred representation to CCCNR. 21.` ` The Florida Supreme Court dismissed CCCMR's appeal on June 30, 1999. 22.` ` On September 1, 1999, Mr. Holton filed a memorandum in support of his motion to Inspect, Examine and Test Evidence. 23.` ` After a hearing, this Court granted Mr. Holton's motion to test evidence on December 6, 1999. That same day, this Court also denied the State's motion for rehearing regarding the scope of the evidentiary hearing. 24.` ` However, on January, 20, 2000, after a hearing, and over Mr. Holton's  Y" objection, this Court ore tenus reversed it's decision regarding testing, in part. Specifically, this Court agreed with the State that the Florida Department of Law Enforcement (FDLE), test the evidence.>&0*((Ԍ25.` ` On January 27, 2000, Mr. Holton filed a motion for rehearing. After the State met with Mr. Holton's independent expert and learned that FDLE did not have the capabilities to conduct mitochondrial DNA testing, the State agreed to undersigned's expert conducting the testing. 26.` ` On April 24, 2000, this Court entered an Order regarding the procedure for testing the evidence. 27.` ` On August 3, 2000, the State and Mr. Holton entered a Joint Stipulation on penalty phase relief in which the following was stipulated: "[c]ounsel for the State withdraws it's Response to Defendant Holton's Rule 3.850 motion, regarding the penalty phase issues. The State concedes error which requires a new penalty phase. Specifically, the State acknowledges error as to Claim X of Defendant Holton's Rule 3.850 motion." The parties also agreed that because of the concession of error an evidentiary hearing was unnecessary as to several of the penalty phase issues. 28.` ` On November 28, 2000, this Court held a hearing and ordered Mr. Holton to file an amended Rule 3.850 motion on or before January 8, 2001. Also, this Court scheduled an evidentiary hearing for April 18 20, 2001. This amended motion follows. ` `  "GROUNDS FOR POSTCONVICTION RELIEF By his motion for Fla. R. Crim. P. 3.850 relief and its amendments, Mr. Holton asserts that his convictions and sentences were obtained in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution for each of the reasons set forth below.  ` `  #'0*((Ԍ ` ` ` ` 5INTRODUCTIONă  W  ` `  Innocence Matters Mr. Holton is innocent of the crime for which he was convicted and sentenced to death. The execution of an innocent person is "the quintessential miscarriage of justice." Schlup, 115 S. Ct. at 866. As Justice O'Connor has explained:  ` ` Regardless of the verbal formula employed "contrary to contemporary standards of decency," "shocking to the conscience," or offensive to a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," the execution of a legally and factually innocent person would be a constitutionally intolerable event.  ` `  Herrera v. Collins, 113 S. Ct. 853, 870 (1993)(O'Connor, J., concurring)(citations  YK omitted)..K Y ԍWhile the Court denied the petitioner's claim in Herrera, it did recognize that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional." 113 S. Ct. at 856.. Even in the context of noncapital cases, the Court has recognized that "a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated." Kuhlmann v. Wilson, 477 U.S. 436, 452 (1986). See also, Schlup, 115 S. Ct. at 866 (recognizing that "concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system"). In Kuhlmann, the Court established that successive habeas petitions may be brought in the rare cases when a petitioner makes a "colorable showing of factual innocence" Id. at 454. See also, Murray v. Carrier, 477 U.S. 478, 49596 (1986)(noting that the cause and prejudice standard must sometimes yield to provide adequate!K0*(( protection to victims of a fundamental miscarriage of justice); Smith v. Murray, 477 U.S. 478 (1986)(reaffirming the priority of an individual's interest in presenting evidence of actual innocence over the State's interest in finality). In these three cases, the Court shifted the focus of habeas review from the preservation of constitutional rights to a factbased inquiry into the petitioner's guilt or innocence. In doing so, the Court struck a balance between the States's interest in finality and the prisoner's interest in challenging the basic injustice of his sentence. The Court noted the necessity of creating an exception to finality in cases of actual innocence because of "the overriding importance of th[e] greater individual interest in presenting an innocence claim. Schlup, 115 S. Ct. at 866. See also, Stone v. Powell, 428 U.S. 465, 491 n.3 (1976)(noting that the miscarriage of justice exception to a showing of cause for procedural default serves as an "additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty."). This recognition of the individual's "overriding" interest in cases of actual innocence emphasizes that when a prisoner is factually innocent his interest outweighs that of the State simply because the State has no finality interest in the imposition of a sentence, whether incarceration or execution, which would be fundamentally unjust. In recognition of the grave injustice that occurs when an innocent person is imprisoned or executed, the Court allows more lenient treatment of habeas petitions when petitioners bring actual innocence claims. The Court tied the miscarriage of justice exception that allows petitioners to overcome a procedural bar to claims of actual innocence in order to keep the exception narrow and rare. In doing so, the Court felt that it had properly "accommodate[d] both the systematic interests in finality, comity, and conservation of:&0*(( judicial resources, and the overriding individual interest in doing justice in the 'extraordinary case'" Schlup, 115 S. Ct. at 864 (quoting Carrier, 477 U.S. at 496). In Carrier, the Court established that petitioners asserting actual innocence do not have to satisfy that cause and prejudice requirements to avoid the procedural default rule:  ` ` [W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.  ` `  477 U.S. at 496. The Court had previously expressed its confidence that innocent prisoners would always satisfy the cause and prejudice requirement, Engle v. Isaac, 456 U.S. 107, 135 (1982), but in Carrier, the Court recognized that the injustice of imprisoning or executing an innocent person outweighs any interests served by this requirement. In Engle, the Court left room for this exception by noting that "[t]he terms 'cause' and 'actual prejudice' are not rigid concepts; they take their meaning from principles of comity and finality ... In appropriate cases, those principles must yield to the imperative of correcting a fundamentally unjust incarceration." 456 U.S. at 135. This exception to procedural default has become known as the actual innocence "gateway" through which a petitioner passes to allow presentation of otherwise barred constitutional claims. See Herrera, 113 S. Ct. at 862. The Court explained in Schlup that if the petitioner presents evidence of innocence that undermines confidence in the outcome of his trial, he passes through the "gateway" and can present his underlying constitutional claims. 115 S. Ct. at 861. The Supreme Court has distinguished between claims of actual innocence and those alleging innocence of the penalty imposed. In Sawyer v. Whitley, 505 U.S. 333 (1992), the Court adopted a more stringent standard of proof for claims alleging innocence of the death#' 0*(( penalty. In such cases, the petitioner must demonstrate "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty." Id. at 348. However, in Schlup, the Court retained the lower standard established in Carrier for claims of actual innocence. 115 S. Ct. at 866. The Court noted that the lower standard, requiring a petitioner to show that a constitutional violation "probably resulted in the conviction of one who is actually innocent," Carrier, 477 U.S. at 496, is more appropriate in situations of actual innocence because of "the paramount importance of avoiding the injustice of executing one who is actually innocent." 115 S. Ct. at 866. In Kuhlmann, the Supreme Court described the burden on prisoners alleging actual innocence:  ` ` [T]he prisoner must "show a fair probability that, in light of all that evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of the facts would have entertained a reasonable doubt of his guilt." Thus the question whether the prisoner can make the requisite showing must be determined by reference to all probative evidence of guilt or innocence.  ` `  477 U.S. at 454 n. 17 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)). In other words, the prisoner must show that there would probably be reasonable doubt about his guilt, Herrera, 113 S. Ct. at 882, or that a constitutional violation has "probably resulted" in a mistaken conviction, Carrier, 477 U.S. at 496. The Court in Schlup explained that such cases require a petitioner "to support his allegation with new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not:& 0*(( presented at trial." 115 S. Ct. at 865. As demonstrated in Claims I, III, IV and V, Mr. Holton can meet this standard.  W Reasonable Doubt and Actual Innocence As the Florida Supreme Court recently reiterated, Mr. Holton's conviction involved circumstantial evidence. Blackwood v. State, ___ So. 2d ___ (Fla. Dec. 21, 2000), slip op. at 11. During the pendency of Mr. Holton's case in postconviction he has uncovered evidence to completely refute the State's circumstantial case against him and evidence that proves his innocence. The State presented evidence placing Mr. Holton near the scene of the crime with the victim. Both of the witnesses who identified Mr. Holton as being present near the scene of the crime lied to the police, the prosecution and the judge and jury. Witnesses were available to refute these lies but were never called to testify. One of these witnesses was even listed in a police report as a witness, yet defense counsel failed to interview him. Dan Simmons knew that Carrie Nelson lied to the police about seeing Mr. Holton enter the abandoned house on the night of the murder. Mr. Simmons knew this because, as Ms. Nelson admitted to the police, Mr. Simmons was present with her on her back porch on the night of the crime. Mr. Simmons confronted Ms. Nelson about her untruth and she told him that she needed to stop Mr. Holton from burglarizing her home the murder charge was the way to accomplish her goal. Mr. Simmons even went so far as to tell the police that Ms. Nelson was lying, but these statements were omitted from the police reports. At trial, Mr. Holton presented an alibi defense. On the night the crime occurred, Mr. Holton was at Red Clemmons' rooming house, asleep. Mr. Clemmons had no reason to lie:& 0*(( about Mr. Holton's presence; he did not know Mr. Holton very well. The prosecution was unable to refute Mr. Clemmons's testimony. As to physical evidence, the prosecution presented testimony that there were scratches on Mr. Holton's chest which were between twentyfour (24) and thirtysix (36) hours old and evidenced a struggle between the victim and Mr. Holton. Also, the prosecution presented testimony from an FBI agent that a comparison of hairs found on the victim's mouth and from Mr. Holton did not exclude Mr. Holton as being the source of the hairs found on the victim. This evidence corroborated the prosecution's theory that the crime occurred during a sexfordrugs exchange. However, the medical examiner's testimony was misleading. The scratches on Mr. Holton's chest were much older than what the medical examiner testified. In fact, the scratch marks were several years old. Furthermore, mitochondrial DNA analysis proves that the hairs found on the victim's mouth exclude Mr. Holton as being the source of those hairs, thus damaging the prosecution's theory of the crime. At the time of the trial a jail house snitch came forward and offered testimony that Mr. Holton told him that Mr. Holton committed the crime. The assistant state attorney who prosecuted Mr. Holton characterized the jail house informant's testimony as the most important evidence in the case. The assistant state attorney stated:  ` ` I have to say that [the jail house informant's] testimony, which was the first thing that we presented in the trial and then, of  Y" course, corroborated by the other evidence, led to the  Y# conviction of the defendant ." Actually the jury was out less than four hours and a case that was very circumstantial and then they recommended death and he was sentenced to death, and I think that is significant and his cooperation was significant and<& 0*(( the fact that he was never asking for anything enabled us to present testimony that in itself is very unusual . . . .  ` `  (emphasis added). Mr. Holton did not confess to anyone, including the jail house informant. In fact, the jail house informant lied at Mr. Holton's trial. While Mr. Holton was incarcerated pretrial, the jail house informant: 1) figured out that Mr. Holton was in jail on murder charges; 2) learned as much about Mr. Holton's case as he could; 3) contacted the state attorney; 4) told the state that Mr. Holton confessed to him. This testimony was untruthful. Furthermore, the state told the jail house informant that he would be rewarded for his testimony. The evidence which "led to Mr. Holton's conviction" was untruthful. The state rewarded this untruthful testimony. The jail house informant was facing a minimum sentence of nine (9) to twelve (12) years in prison on his pending burglary and grand theft charges. The judge who sentenced the informant commented "[t]he defendant's background totally justifies him being sentenced to life imprisonment without the right to parole." Yet, the informant received five (5) years of probation on each count, the first two (2) years were to be served on community control, the first threehundred and sixtyfour (364) days of which were to be served in specified residency in the Hillsborough County Jail. What Mr. Holton's trier of fact did not know about the evidence that led to the conviction of Mr. Holton was that in exchange for false testimony the informant was out of jail within approximately one (1) month of his sentencing. At the trial, the defense attempted to present to the jury evidence of an alternative suspect in the murder of Katrina Graddy. Pamela Woods, the last person, other than Ms. Graddy's killer, to see Ms. Graddy alive knew that Ms. Graddy had been raped by David#' 0*(( Pearson, a.k.a. Pine. Ms. Woods testified in her deposition regarding her knowledge of the rape. Despite the fact that Ms. Woods was subpoenaed to testify in the defense's case, she did not appear. The trial attorney requested a continuance so that Ms. Woods could be brought to the courthouse. Judge Coe refused to continue the trial. Rather, he allowed portions of Ms. Woods's deposition be read to the jury, however, nothing about the rape or Pine was mentioned. The jury never knew about Pine's threat to Ms. Graddy that he "would get her." Furthermore, evidence is available that David Pearson confessed to the murder and sexual battery of Katrina Graddy. Rudolph Holton is an innocent man who has spent over fourteen (14) years in prison for a crime he did not commit. There is no doubt that there is a fair probability that the evidence produced at trial and the evidence produced since his trial that the trier of fact would not have entertained a reasonable doubt of his guilt. Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17 (1986). Relief is proper.   ` ` 0*((  Y L8 CLAIM I MR. HOLTON WAS DEPRIVED OF HIS RIGHT TO A RELIABLE ADVERSARIAL TESTING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT PHASE OF HIS CAPITAL TRIAL, THE STATE'S FAILURE TO DISCLOSE CRITICAL EXCULPATORY EVIDENCE WHICH WAS NEVER PRESENTED TO THE JURY, AND HIGHLY IMPROPER AND PREJUDICIAL PROSECUTORIAL AND JUDICIAL MISCONDUCT, ALL IN VIOLATION OF MR. HOLTON'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS. AS A RESULT, CONFIDENCE IS UNDERMINED IN THE  X RELIABILITY OF THE JURY'S VERDICT OF GUILTY.  ` `  This claim is evidenced by the following:  1. a. i.(1)(a)(i) 1) a) 1. a. i.(1)(a)(i) 1) a) 1. a. i.(1)(a)(i) 1) a) 1. a. i.(1)(a)(i) 1) a)1.` ` All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.  X  I.XINTRODUCTION (# 2.` ` The United States Supreme Court has explained:  ` ` A fair trial is one which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.  ` `  lStrickland v. Washington, 466 U.S. 668, Strickland v. Washington, 466 U.S. 668 (1984)lStrickland v. Washington, 466 U.S. 668, 685 (1984). In order to insure that an adversarial testing, and hence a fair trial, occurs, certain obligations are imposed upon both the prosecutor and defense counsel. The prosecutor is required to disclose to the defense evidence "that is both favorable to the accused and `material either to guilt or punishment'". kUnited States v. Bagley, 473 U.S. 667, 6United States v. Bagley, 473 U.S. 667 (l985)kUnited States v. Bagley, 473 U.S. 667, 674 (1985), quoting dBrady v. Maryland, 373 U.S. 83, 87 (l963Brady v. Maryland, 373 U.S. 83 (1963)dBrady v. Maryland, 373 U.S. 83, 87 (1963). Defense counsel is obligated "to bring to bear such skill and knowledge as;&0*(( will render the trial a reliable adversarial testing process." Strickland, 466 U.S. at 685. Where either or both fail in their obligations, a new trial is required if confidence is undermined in the outcome. rSmith v. Wainwright, 799 F.2d 1442 (11thSmith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986)rSmith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986). To the extent that newly discovered evidence is uncovered, that evidence must be considered along with the evidence not disclosed by the State and/or not investigated by defense counsel in assessing the reliability of the outcome. State v. Gunsby, 670 So. 2d 920 (Fla. 1996). 3.` ` Mr. Holton was denied a reliable adversarial testing. The jury never heard the considerable and compelling evidence that was exculpatory as to Mr. Holton. Either the prosecutor failed to disclose this significant and material evidence, or defense counsel failed to investigate and present this evidence. It cannot be disputed that the jury did not hear the evidence in question. In order "to ensure that a miscarriage of justice [did] not occur," Bagley, 473 U.S. at 675, it was essential for the jury to hear the evidence. State v. Gunsby.  Whether the State suppressed the evidence, defense counsel unreasonably failed to present the evidence, or the evidence is newly discovered, confidence is undermined in the outcome because the jury did not hear the evidence. 4.` ` Counsel's highest duty is the duty to investigate and prepare. Where, as here, counsel unreasonably fails to investigate and prepare, the defendant is denied a fair adversarial testing process and the proceedings' results are rendered unreliable. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 38488 (1986) (failure to request discovery based on mistaken belief state obliged to hand over evidence); Henderson v. Sargent, 926 F.2d 706 (8th Cir. 1991)(failure to conduct pretrial investigation was deficient performance); Chambers v. Armontrout, 907 F.2d 825, (8th Cir. 1990)(en banc) (failure to interview:&0*(( potential selfdefense witness was ineffective assistance); Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989)(failure to have obtained transcript witness's testimony at codefendant's trial was ineffective assistance); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986) (failure to interview potential alibi witnesses). 5.` ` Even if counsel provides effective assistance at trial in some areas, the defendant is entitled to relief if counsel renders ineffective assistance in his or her performance in other portions of the trial. Washington v. Watkins, 655 F.2d 1346, 13Washington v. Watkins, ` ` 655 F.2d 1346 ` ` rehearing denied with opinion, ` `  662 F.2d 1116 (5th Cir. 1981), ` ` cert. denied, 456 U.S. 949 (1982)Washington v. Watkins, 655 F.2d 1346, 1355, rehearing denied with opinion, 662 F.2d 1116 (5th Cir. 1981), cert. denied, 456 U.S. 949 (1982). See also lKimmelman v. Morrison, 106 S. Ct. 2574 (Kimmelman v. Morrison, ` ` 106 S. Ct. 2574 (1986)lKimmelman v. Morrison, 106 S. Ct. 2574 (1986). Even a single error by counsel may be sufficient to warrant relief. nNelson v. Estelle, 626 F.2d 903, 906 (5tNelson v. Estelle, ` ` 626 F.2d 903 (5th Cir. 1981)nNelson v. Estelle, 626 F.2d 903, 906 (5th Cir. 1981)(counsel may be held to be ineffective due to a single error where the basis of the error is of constitutional dimension); Nero v. Blackburn, 597 F.2d at 994 ("sometimes a single error is so substantial that it alone causes the attorney's assistance to fall below the Sixth Amendment standard"); Strickland v. Washington; Kimmelman v. Morrison. 6.` ` The Eighth Amendment recognizes the need for increased scrutiny in the review of capital verdicts and sentences. Beck v. Alabama, 477 U.S. 625 (1980). The United States Supreme Court noted, in the context of in