obviously the audio will be available later on the court website please recall that when you're citing to the record it's helpful to have an actual record citation and not merely a reference to the record particularly a record this long mr smith lacked the jurisdiction to file successive p b s and there are two rational issues before we get to what i want to focus the majority of my time on which is the clear and convincing evidence of drumsna as actual  actual innocence of st degree murder the st issue is the issue of equitable tolling as the court is aware mr smith's pro se petition was filed two days after its appetite deadline and the district court held at that time was excused by academics following if the court ask questions about the equitable towing issue i can i can address that more fully but i think that you know the district court's ruling is judged by her view trying to be use of discretion and i think under the circumstances of this case where where mr smith is incarcerated where he was filing c a where he was on lockdown at the time that the petition was due and where where there was some confusion as to whether or not the th circuit would be transferring the petition to the eastern district under those circumstances wasn't assuming argue window date it was not an analysis of that actually when did they know this and that and then this passed and then the state was doing this so we can put that time above aside and on and on and on because the magistrate judge came out the other way is that even giving you every last you know benefit you still lose the district court and took these to mean argue when to day and analyzed only the today that the louisiana supreme court issued issued its deny all this court the th circuit only granted mr smith permission to file his excessive petition in march of that next i don't know twelve years in state court proceeding is pending back and forth an up and down there is gaps of time and if you add up those gaps of time there are longer than a year before we get to this issue whether circumstances and sense the th circuit had granted him under the circumstances where the brady allegations are very serious where the orleans parish d a s office did not disclose that material and till nearly fifteen years after mr mr smith's conviction that it would be under the circumstances of this case unduly harsh under those circumstances to all that time against mr smith that i know what time were analyzing to even make that analysis is what i'm saying is one thing and we're talking about two days during which he's on lockdown which is a separate issue because i understand he calls this on lockdown but we'll get to that later even if we accept it assuming argue window those two days could be forgiven i don't know that we can bring all of the other time frames and those were just simply not looked at by the district judge the magistrate judge again it is so argue endo this came  the other way and i think where the case law comes down is is a petitioner sitting on their rights are are they diligently pursuing their rights in federal court and i think under the circumstances of this case you have to you have to look at whether or not the district court abused its discretion when it determined that mr smith was not sitting on his right that every moment going forward from the district court from excuse me from the trial court and state court through the district court through his request to this court mission to file the successor titian that he was diligent at every turn and he was placed on  lockdown and he even made phone calls to his mother he had sent the petition to the th circuit and was under the impression that if that circuit would mail the petition to the eastern district which the th circuit ultimately day and his mother paid for the postage but it required all of that follow up and this is a pro se petitioner who's been incarcerated at the louisiana state penitentiary so i think you have to look at whether or not this is someone who was sitting on his rights or whether th someone who was diligently at every trial and pursuing his rights which this is the petitioner who pro se petition to this court for the very stringent standard of actual innocence and was granted the opportunity withheld what was was all of that known to him as early as two thousand and one or was it known to him made known to him later that i believe that all of the information was bit over the equitable because i'm not sure when we're measuring it from i get the arguments about the walk down i'm just not sure when we're measuring his diligence from well we'll have to look at the record and by the time he needs understeer state court i think we're dealing with the louisiana supreme court their final denial and as i said before that you know the state had multiple opportunities to object to that da more issues on equitable calling or shall i move on and so i'm going to move on to the jurisdiction question assuming assuming that it was properly mr smith could have raised all of those pretty brady claims all of those pieces of brady evidence were significant information and they were significant in that this was a case where drone who was fifteen years old at the time who had a very determined it alibi for the time of the crime at a youth studies center which is which is no small moment he wasn't you know at a store he wasn't at playing video he wasn't at an arcade he was meeting with a probation officer and and you know why and at any point noticed anything look i don't know you have arguments as to each one of them but let's let's say let's assume that you knock out does or a thompson because for whatever reason we decide yeah there her statement really was contradictory and it should been it was prejudicial not to not to disclose it but the problem is is that you still would have two other eyewitnesses putting him at the scene both of whom picked him out of all one and so how do you overcome all those this problem you have to not get all three guesses what i'm asking though a lot has been made about the strength of the eyewitness identifications and that these are all independent witnesses the fact of the matter is that there was a lead detective who had itself was done in an incredibly suggestive way and i think that all of the oh all of the brady confirms that it was that it was done in a suggestive way i think that the th is is is the lead detective and whether consciously or unconsciously you know i witness identification is the lead cause of of erroneous convictions wrongful convictions in this country and that can be done where the person who is in ministering the lineup believes that they know the suspects so well there's an assumption made that the suspect is actually contained in a lineup now double judgments about what might be who the suspect is as opposed to actually picking and not picking what what the counsel the defense in the case as i understand it was as you or i think you mentioned earlier was the alibi that he had an alibi and the alibi is based entirely on that timeline from the gas station to the meeting he went to and then he was sitting in the reception area until the time he went into the  with whatever the appointment was so and as i further understand it the defendant was able to put on all of his time lined up it's is that right he was able to put on the timeline evidence from time whether it's when mr wilder looks at his watch wonder and i think that was four thousand and seventy or nine why is it taking so long and then we have the two police officers who also i think radio at some point fo fourteen dollars or so so that and that evidence was actually brought out at trial as well is that correct so the evidence about mr while is correct the evidence about the two police officers they actually testified that they were at the scene much closer to four so they didn't would have had to have happened at four in order for all of these you know minute by minute advance to taken place for mr smith who had been at his appointment on time and suppressed so at trial everyone testified that it was you know around four whereas the value of the suppressed documents was actually put the time of the shooting much more it was one paved that original document that said for ten the issue with the supplemental police reports was that they were authored and that it was clear from the supplemental police reports the information that they were getting those times from were mr watt well as mr while and so without the supplemental police reports the trial attorneys were not able to cross examine mr while about the time of the incident and were not able to call actually the st reporting officers with their reports to to you know let's just nd you know if you can give her two more minutes and also th the two more minutes go ahead and you had you had another point you wanted they be actual actual innocence i want to make sure you have chance to make that i do want to get to the actual actual innocence i think all of this is you know i think all of this is really important the value of that impeachment material is really important because as the district court i think improperly found that all of this information was known to defense counsel without taking into consideration that even if you believe a time may have been earlier the value of having a document and having a police officer to verify that document and to and have a have a police officer in a lay witness can't be understated even if a brady and the commonsense argument is that you just completely strains common sense to believe that a fifteen year olds who is that a fifteen year old decides to person at close range as a gun has a bike is able to dispose of all of that evidence and be completely timely with his mother for an appointment within you know within ish within an arguably minutes of these things happening and that the police had settled on and durham smith that night and no physical evidence was ever recovered in this case that all that was ever presented were these it strains credibility and all of this brady evidence would have gone to show that these witness identifications were not nearly as strong as what the detective went back and cleaned them up and bolstered and was allowed to testify instant case the district court err in finding that the petitioners nd hideous petition was timely based on equitable polling nd the district court's dismissal of the petitioners nd hay vs petition should be affirmed because the petition honor i believe it to my knowledge the magistrate's finding was that the petitioner wasn't title to statutory tolling so in that sense of the clock would have started to run from the date of the denial of his last round of post conviction applications so i mean even if the assuming that it started to run at that date the date that it became final two days after if you were to grant him equitable tolling he still would have been delinquent but not for that equitable tolling of the main i think the main point comes down to you know whether or not he should have been granted equitable tolling i mean i know that this i don't do you not have you not gone back to say two thousand and one and walk through everything that happened since then too because even on a regular hey b s we lived through and sometimes there's gaps and times you got to this day corbis and then you left and then you went back back and forth back and forth so there's these months that we start to add up sometimes it's a complex calendar have you done that and if so what is your argument on how long what it is due to been assuming argue window what is the right i'm not sure of the exact date of when that started and concluded but yeah if you're right in the sense that it is very complicated as to when we start and then stop the clock and actually you know apply statutory tolling to the deadlines but you know it's the state's position that the main issue here is that the defendant should not have been granted equitable tolling based on the legal standard set forth in the precedent set or even by this court  i know that the full the th circuit has you know stated and held only in rare circumstances for an exceptional circumstances is equitable tolling permitted and the petitioner has to meet two requirements in order to receive equitable tolling st they have to be diligently pursuing their rights which is don't you have to have a starting date i think that's what we would try to get at is somebody's gotta count from point a to point b and wave the flag and magistrate assuming that those are correct and the deadline stop two days before he actually submitted his filing of then the petitioner would require that equitable tolling so he would have been the best that's the assuming argue endo gate i guess what we're looking for is is your argument that it doesn't matter whether he's in lockdown or not that is i or long before that or are you just confortable using the contend that the petitioner did not demonstrate that he was diligently pursuing his rights and that he was he benefited from some sort of extraordinary circumstance issues to go back to because to me my understanding there are gaps of time between twenty million twelve thousand and twelve where he is not in state court so those would not be part of the as you say state or local and when he was not seeking relief from the clock would have run just based on what i have before me and my understanding is that the main issue and the main error that was made at the district court was the granting of extra equitable tolling based on the defendant's representation that why don't you trust that what's wrong with giving him a little bit you know he has this back and forth with the mom in thinking it isn't going to be sent us th received the state's case file and all the new evidence contained therein no later than two thousand and one however the petitioner did not present all of his claims based on the new evidence to state courts until two thousand and eight furthermore the petitioner was not diligently pursuing its rights because you allowed the better part of the gear to pass before taking the st steps towards filing successive hate is a petition additionally the district court erred in finding that petitioners lockdown constituted extraordinary circumstances worthy of equitable tolling of the supreme court held in menominee indian tribe that extraordinary circumstances wrong is meant to cover matters outside of a party's control so here the petitioner submits that he was on lockdown and he didn't have access to his legal materials because he was on lockdown but as noted in our brief the petitioner committed a serious conduct violation that resulted in him being placed into administrative segregation and this is essentially would he prefer refers to as a block down in represented to the lower court so i guess it's worthwhile to consider that  referring to the situation is lockdown rather than administrative segregation resulting from his serious conduct violation he tries to shift the blame off of him so there's ample evidence the form of a d o c conduct records and employee affidavits that his actions were his own in committing that serious offense so clearly based on that this was something that was within his control and it falls well outside of the extraordinary circumstances prong standard for equitable tolling pages had no no i just was looking at the read very pages forward fourteen to sixteen went down the path that i was asking about are you just saying you guys are withdrawing that fourteen to sixteen and th you withdrawing that or will i think it's just two sides of the same corner it's a it's a matter of diligent pursuit of the rights so you know whether or not we want to along that under the realm of statutory thing because you may get ya make the argument that the magistrate judge thought ruling was not a ruling that the nd issue the district court's judgment dismissing petitioner nd hate his petition for a lack of jurisdiction should be affirmed because the petitioner failed to meet at the stringent requirements for brain successive petitions for requires dismissal of a claim presented in a nd or successive havey his application which was not presented in a prior application unless the facts underlying the claim if proven and viewed in the light of the evidence as a whole d would be sufficient to establish by clear evidence that but for the constitutional violation no reasonable fact finder would have found the applicant guilty of the underlying offense furthermore places limitation on the federal courts review of state court decisions denying brady claims federal courts are not to decide de novo whether batiste or has sufficient and i'm well aware there's limits on as the st round go round nd go around even more so i'm well aware of that though and the district court said the same thing a very odd case because typically issues of the alibi whatever are not i mean you all are really even disputing that he has very good evidence of alibi it's really this you know ten minute time period and so does that not just concern you as a prosecutor in your corner as to whether this guy's been sitting in jail for thirty five years wrongfully convicted if if if that were true if he was wrongfully convicted that would be concerning however it is our position that the state present presented a strong enough case in order to convict the defendant and that the three eyewitnesses at issue the majority of the state's case rested on these these three eye witnesses three disinterested eye witnesses each identified the petitioner as the shooter as the perpetrator in this case and it was enough even considering all of the evidence and much of the new evidence that is essentially a tip of what was already known to the defendant at trial and presented to the jury even despite all that you know addressing the timeline and the fact that they had a consultant that drive and mapped out the time it would take to get from where the shooting occurred to the youth study center the jury consider all of that and they found that the three eyewitnesses were credible enough to convict the defendant so i mean based on that and you know the the the legal standards before us i believe that you know i think that will also consider the fact that he's been through four rounds of post conviction relief or view and each time you spend  mr smith live near the crime scene i believe that he did if you do recall mr sumi do mr smith was able to argue to the jury this question of the timeline that it was it was implausible that he would be able to do the crime run away go home go with his mother and then you know go to the gas station and to use it or what was that i mean was that given to the jury i mean to  my knowledge you know these defense did make a timeline based argument you know for us to look back and try to assume that he would have had time to clean off the blood d or you know change his clothes that that's part of a lot of different assumptions into his defense that we i don't think that we are legal legally unable to do based on the standard of review here i think your point is that that's certainly not ne discovered how hard this timeline would be to me was always true then i'm going to see i think that there is another part of the issue your honor you know we are talking about a matter of minutes here however you know even with his own witnesses you know i believe that at some points they weren't quite consistent either you know one witness would have said one time where another one might have said another one that was you know a few minutes off and either direction it's the same sort of thing here in when we were talking about the state's witnesses mr wheel and the thompson sisters you know they were all relatively within the same general timeframe you know give her give it to the point is more of the very end opposing counsel's argument was kind of to the bottom line he couldn't have done it you know this is just too ridiculous to think he did and i'm saying that argument has always been out there that isn't something where we just found out oh my gosh there was d n a of some on no person in the on this person's whatever and that must accompany the killer that's the kind of newly discovered evidence that comes up later this was not newly discovered this argument accounts but you know considering all of that taken together the jury ultimately decided it was enough of the state presented enough evidence based in large part on the three eyewitness testimonies that the defendant was guilty of this crime we ask you about one of those  was incorrect info wrong there was withheld evidence or suppressed evidence that said she was walking at the time driving versus walking it struck me as a fairly significant divergence between her trial testimony and him are wrong about much of it a dress has seen addressed in the in the your posing counsel's brief but not your brief so much i'm not aware of a discrepancy between actual driving and walking i know that me oh she to m there was a ledge discrepancies about whether or not the thompson sisters were stationary when they st observed the incident occurring but a fall upon further consideration it was i guess deduce that they were driving and they st notice the older cation occurring as they approached this intersection at jenin registry d maybe you can help us too with the at the trial and that in reality there were fourteen photographs and so i'm left wondering why there are two photographs of the defendant in the fourteen and he was petitioner even failed to show that a fourteen graph array rather than a photograph of what ray was shown to the witnesses for the identification and then just for court also noted d the record was very unclear at this point especially considering that the witness we'll in b o c each independently independently identify the same photograph of the petitioner as the perpetrator of the shooting  there was also the contention that the there were two photographs of the defendant in the array however that was never her you know proven i do know that the district court noted that there were two photographs that looked similar however due to poor conditions of the photos and quality they were they were able to decipher if it was indeed both to depict two photographs of the defendant and even if it  on for quite some time in state court in state court the state did raise the issue upon timeliness of various state court petitions and the trial court in that case  is the crack state t v to be arguing from and that is the same concession that they made all through federal court all through district court i believe you know what it's incumbent on this accordingly that it can make i mean well i realized you know two days is it measured the same way as other day get get can make a difference because for example if he'd not done it for a year after who due to the states having having hidden and misrepresented the existence of significant statements that would have been favorable to the defense  its way through state court with making those arguments in state court and the trial court in state court to which i think that's court deference ruled that those petitions were timely that the petitioner was diligent and pursuing relief and the district court made a separate finding and went after all when this was disclosed and how it was raised by the petitioner to find that separately he was diligent so i think under those circumstances and given the fact that this is the petitioner who make calls to the choir and once he found out that there was no interest in actually filed made every swift effort to make sure that his position was timely filed and i think you  judge chains point your weight you're hit the nail on the head when you said that if this was someone who'd been sitting in jail for thirty five years on a wrongful conviction that we really should you know in terms of the  equitable tolling issue i understand but this is really someone who has been sitting in jail for thirty five years without ever having a fair day in court and was convicted as a juvenile to understand we can't just conclude that a gram believe we  alleged eyewitnesses and the state suppress evidence that would have undermined each one of them separately and collectively as well as would have undermined the lead detective who bull stert all of their be i mean she said that it took me that the trial so how could that have supported her viewpoint of him so deseret thompson is the most problematic of the three but she also says that they were on foot and you know this is a question of city blocks so the difference between being on foot is that your st seeing this incident from two hundred and forty feet away as opposed to one to two feet as the witnesses testified wheels testimony but he was very certain all of their testimony as to the time of the incident would have been with undisclosed documents none of them made any study center at four hundred and fifteen or poor thirty being being is latest possible that he was there for thirty and fifteen minutes or drive and ten minutes at the gas station they all pushed back their time of this incident occurring at trial and the defense had no ability to impeach those times or even beyond certainty about those times because the state suppressed every statement that would have given a definitive time as being closer to four hundred and fifteen dollars and they suppressed every statement that was unclear about the description of the perpetrator and have and their opportunity to view that shooting thank you we seeing both sides arguments we appreciate your argument and we appreciate your willingness to serve as a court appointed counsel mr hodder and with that the case is under submission and we will take a five minute break