representing the appellant's in this particular matter is our contention that the federal district court in this case improperly and incorrectly granted federal relief there is our request this court also reversed the grant of the writ and  back to the court with instructions to the court to deny the rest as ground one of the federal aviation petition that the court considered there was a claim of insufficiency of the evidence now this particular this case is  governed by the n r a terrorism an effective death penalty act and specifically relief is to be determined based on exhaustive claims under twenty two fifty four the now with respect a claim of insufficiency of the evidence this court has said sarah stand that twenty to fifty four d one is the appropriate analysis in that particular case and when one looks at insufficiency of the evidence one has to apply jackson determine whether or not the nevada supreme court correctly applied jackson versus virginia that is the controlling law and you know when one examines jackson versus virginia the court is not to consider issues of credibility and it has and it assumes the jury resolved conflicts of evidence or credibility in the light most favorable to the prosecution presented is whether a jury could reasonably have found from the evidence presented a rational jury could have found from the evidence presented the elements of the our going is presented at trial at trial that's exactly correct i've got a question hundred percent sure because judge pro re sided i think three different ideas upon which he thought that it might be considered the first one was as he said that it had some varying actually on test conflicts in the evidence credibility that's been on the purview of the court so let me ask you this this case in part deals with d n a evidence i imagine a hypothetical case where the defendant is tried in state court and under d n a one point zero an expert gets one on the stand and says the chances of this not not being th defendant's bodily fluid are six billion the one case gets tried goes up through the court of appeals the state supreme court hey b s gets filed and it's ten fifteen years later and we now have a six point five and there's an expert that will say not only was that expert wrong but i've now had an opportunity to test the samples and new d technology just demonstrates to me that the defendant is excluded as a possible suspect in this case under your theory with the district court be able to consider that and go to the district court would not as a matter of fact that's where the court erred in granted we've not only on this ground but so there is there is not even room for proof under your theory there's no room for proof of actual innocence actual innocence so there's no free standing claim of actual innocence and in the absence of some kind of violation of some constitutional right no that's right i assume that given the hypothetical the judge hawkins just mentioned as there are other avenues not and not in a petition such as the one that we have here but there are if a separate avenues either directly to the state system some sort of a post conviction relief or a showing of actual it's improper for a district court on hate b s to consider evidence that was not presented at trial even if there's been a dramatic change in scientific theory that  after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt that's correct ok or can you show me where in the nevada supreme court opinion they parse the elements of this crime the they did not parse the elements of the crime per se but at the end we have to end if they as it's not an unreasonable application of that and what the nevada supreme court did is it went in re cited certain aspects specifically that were supported by the record specifically that the victim sexually assaulted in the early morning hours the defendant was acquainted with the victim and her family the victim or skinny the defendant knew that the parents were not home he knew that because the victim had called trying to locate her mother and he took the call and the victim had said you know i don't know where my mommy is you know and he went over to i think it was c j he's the bar i think we're all familiar with the factual predicate what my inquiry goes nevada supreme court went through the elements of this crime and viewing the evidence in the light most favorable to the prosecution analyzed or pursed those elements as jackson seems to require they re cited the evidence that would show that the event had occurred and that the defendant had done it now under jackson taking that and taking taking that alone or however you view that that's sufficient because it's not contrary to oregon reasonable application of clearly established federal law the nevada supreme court doesn't have to go through ok sexual assault on a man through the age of fourteen she was under fourteen years old she was sexually assaulted in this case ainley and badge and only and it resulted in substantial bodily harm the issue that was presented you know like i say this is not a question of there isn't any dispute that this poor girl was sexually assaulted the only issue was who did it and the nevada supreme court we cited the evidence the sheriff's deputy or the investigative deputy to show ok what were the you know exactly what was her response but under jackson what this court has to do is has to resolve conflicts the question is is could the jury have found from the evidence presented in the light most favorable favorable to the prosecution not considering credibility yes the answer is did this girl identify troy brown and the answer to that is yes and while she may have been impeached and you or anybody in this room ma think that that identification isn't sufficient well that for us is going to sign it was really the could be confusion with respect to the brother was brought out in trial and it was the subject of impeachment and cross examination is that worse and in fact the jury one of the interesting things about this is the jury got to see both the defendant troy brown and his brother because they testified and s the jury could sit there and say well one fellow seem to have seen it here use balding and compare and there was testimony about how or troy brown may have changed there's an inference at least that he may have changed his appearance because he had darker hair at trial that was that the court needs to be absolved of anything or needs to what i'm trying to do is narrow the scope of what really is supposed to be looking at here and if the premise of your argument all really because that's that's part of our argument is that part of the aspect of this thing this transfer margraf acacia number one isn't even actually exhausted and part of the problem with this is that the federal district judge when he granted when he granted relief on the three claims of ineffective assistance of counsel he has interjected into this thing hindsight which is an appropriate are we merged but if again under twenty two fifty four d to now the claims of ineffective assistance of counsel you have to look at what evidence was presented at the state in the state court and the evidence that i suppose that the d n a expert in this case had falsified his credentials and that was not known obviously either to the prosecution or the defense and it turns out during the time the federal hey this is ending that concrete proof i e let's say a conviction of a crime of this expert is available are you saying the district court couldn't expand the record under twenty two fifty four d to consideration of a claim and there are the petitioner claims he exhausted this in state court the federal district court claims he exhausted  and state court under twenty two fifty forty two these claims are examined in light of the evidence presented in the state court now what happened is when the judge granted the expansion of the record he threw in the stuff in the claims of ineffectiveness of some like harry answer to my question is that would be ok now i'm not saying that's ok no no not what judge pro did i'm asking if it would be if the application of the rule you were advancing would prohibit a district judge from considering the fact that an d n a expert at the trial had falsified his credentials minute since i'm going to stay and send you back to the nevada courts to exhaust that point at the very least and then we get into the rinds ok questions and that sort of thing because and part of this is the court my name is paul turner with the turn of federal public defender office and of the value i like my main goal as i said yesterday house here is to answer the court's question that's why i'm here i would like to respond if i could to a number of things that i've heard recently i am troubled by the violence of this post trial well post state process evidence in the federal district to the jury the evidence may may not be clear on its face or it may be clear on its face but it has to be some sort of interpretive process there and all we presented in that report was the next was an information to help the court understand what the evidence was that was presented obviously if evidence is incomplete if there's a gaping hole in the additives that certainly goes to its efficiency and in this case as the court has noted the sibling aspect of this case i critical component and there was a gaping hole in this case the state's expert mr rare remeron contemplated one brother in her calculations which which as you as you see from the miller report were actually the worst case calculations for our client but beyond that she she contemplated one brother she was asked at trial would it would a second rather be a factor in this thing she said no actually there were four other brothers and all of that changes the math so that there is a there is an incompleteness in this testimony and i think under jackson you're entitled to show that evidence is incomplete well that's one of the problems there is that there are other brothers but  only one brother could potentially have been a possibility or a possible target here all the others either lived away or it were clearly beyond this issue actually under the  very much in his picture and now this is an extremely small town the distances are as i think the record will show are very small here travis was in the town that night so there were two other brothers in the same little small town that night both of whom intimately geographically close to this whole scene that the other two brothers were in utah utah is not not too far away but was there any suspicion directed toward travesty is clearly was toward trent i understand that but was it ever s travis was the i'm not sure the police reports ever suggest that i think they should have then if you want to be blunt about it i think if i think this should have been directed at every every one of the brothers there and as they were as as mr hanley and other possible suspect to the jury the factual probabilities that he was not the known or the volley flues with one exception your honor she is she did offer a calculation with one to consider one extra one brother so two brothers she offered a calculation and came up with a one in sixty five hundred figure that's totally inaccurate and totally wrong and it also doesn't consider that there was a third brother as ice and decayed in town that night and that there were two other brothers she was asked if another brother would have met anything and she said no i didn't mean anything that's just plain wrong it's mathematically wrong it's false so her analysis was grossly inadequate and incomplete worse they would only be one out of two hundred fifty six isn't that right but i think if you if you consider all the parameters here you actually get down to numbers lowest one in sixty four because you said it is that in evidence here and you should consider all of them this evidence was presented from the state's best case our worst case so it was incomplete in that regard to it was she ever considered the full picture was mr romero the expert to justify was she asked whether the evidence could exclude the other brothers i don't believe she was your honor but i could be wrong about that i don't recall that question was was she asked anything about that i don't believe i don't believe she was i may be wrong but i don't she asked us whether either of the brothers in the other two brothers in the area could have been the don't know are of the body not only fluid she examined my recollection is that when when the question was asked by defense counsel look should you consider a second brother and he obviously meant travis but that she said no and that he left if he was there on what was there anything prohibiting the trial defense counsel from asking those questions no address that and please interrupt me if i did not address and clearly the state conceded this twice in my brief i mentioned one of them i honestly didn't know about the second till i was on an airplane coming here and i found the second one the first brief they flat out say that they're with that that the d n a would have the d n a they could not convict this man that's in an answer followed by the sign by the prosecutor himself this is not some casual person this is the prosecutor that case instate the post conviction hearing in state court now on page sixty five of that document and its internal page it's actually page two fifty six of the transcript and these are these little things if anybody was having this tough time as i have these are very hard to read that i was able to read them on page two thirty six it's actually the iraq that you are sixty five this is the prosecutor and he's responding to the henley situation so he is trying to help his side of the kids he's not just making a casual comment he says he's talking about mr larkey the defense lawyer he created a reasonable doubt and everybody concedes everybody i think conce but for the d n a there was reasonable doubt that is the prosecutor stating that and he is getting an advantage from that he is seeking to win state post conviction which he at which he does so the state of nevada has to obtain a legal advantage on that basis and i would submit to you that's a concession that's binding in any court in america what happened after that did was there a further appellate review with respect to that particular proceeding that there was your there actually was i'm still i'm certain i wasn't to the transcript because i actually i looked at that transcript and i thought i looked at it diligently but i had frankly just missed it and i would have let the court know that it's twice it's not once it's twice his closing argument in post conviction i'd like to mention one thing before i get on to another subject or any subject the court would like to know is that the state indicated this morning that i think they were saying the nevada supreme court somehow that's flat out in the opinion so that there was no identification of mr brown at all the only benefit cation was to the defective false incomplete d n a and this man has been in prison a long time on something that's just wrong it what precisely is your argument with respect to the d n a the fact that the figure one out of six thousand five hundred was used when it really should have been one out of two fifty six is that what you're saying that is that is that the essence of it that's part of it your honor not think that's very important another very important part is the the fact that the witness and if i get think if you read it i'm sure your honour's have read it i think you can almost sense that the alleged was really struggling and didn't want to do this but that the prosecutor got her to say that there was a ninety nine point whatever nine nine nine percent probability that this man was guilty not of the rant as the prosecutors there were right familiar with that sandra that that is is just wrong and you know it's what we all know it's wrong and that that and exposing he tells the jury that ninety nine percent that this man's guilty and this is a jury of of normal people who are presuming not math experts and they actually probably do that and that's why this man got convicted and he could not have been convicted without that kind of evidence that's wrong did you make that argument before the jury no i did did i make the argument for the euro however try the case where it was that was never treatises out there that made it very quote very clear that the prosecutors fallacy was just wrong that was clear and it was also clear i think and i think we see there treatises that are cited in our materials that that would indicate that the  sibling situation was was somewhat clear to it may not have been as clear as the other other was crystal clear but i think that it was clear that that this was an area of great great concern these probability numbers and courts were looking at them and i think it was clear that siblings were a major factor and that the math part of it was very important to it  well i guess when it goes to help me find it's clear otherwise very murky the shining case when you look at that and you'll see that this is page after page of analysis to do it really just in the jacks and you got to look at the elements of the crime it just isn't here this is not a jackson analysis ok let me just go back to the in a for just a moment what is the prejudice that you're suggesting because of the differentials in the d n a numbers i think i think two things and i think if the jury had known that it was at least as likely that it could have been two other brothers possibly even more at least two or you see at least as likely you know you're dealing with numbers of one out of ten thousand one out of one thousand three hundred one out of two hundred fifty six there's they're all adverse probabilities you might be slightly increasing the odds every time there's that there's a new number thrown out but there was never a showing was there that that the suspicion really pointed in another direction well i believe there could have been yawner properly of evidence of in probably presenting so i think the  in sixty four and that that's a dramatic difference between that and one sixty five hundred and course we're talking only about reasonable doubt i mean i say only it's the critical element of any criminal trial if reasonable doubt is what was saying i'm  i'm saying to the court that there would have been reasonable doubt one if you have the proffer of sibling evidence before the court too if that ninety nine percent thing is gone get that out of here i think that may have had a dramatic impact on a juror who is who actually would believe that she these folks are experts they must be right i mean that would impress me i would say is there a prosecutor's folly a case that holds that it is reversible error to allow th released while any other any other litigation goes on and that that's being presumptuous on my part that if that if that should happen i just want the court to know that that's a real important factor to us thank well this is very unusual i don't think i've been presented with that kind of a request  the theory be on a he is petition we're not dealing with a direct criminal appeal in which case under rule nine we could send it back to the district judge to make a determination what would  motions you cannot imagine saying that yes we did actually pan and they turned it down that's what yes we did yes we actually i think judge was kind i believe you were you were one of the two legal attorneys down actually and if you recall that but i mean and you know we your point is that if we are if we were to affirm judge pro that we should order the state to release this individual pending  retrial or your honor and this would be certainly said to paul turner who are fortunate to be in that position that you would remain and that to judge prover make his own decision where they should be released either way we find with us that we're sure we're going to be treated fairly but we just want to we want this man out if we get in a firm and sweet want this man out of prison right now we don't want him still in there and also suppose the state decides it wants to retry this man well then then then that that's a privilege the state  will have to deal with and if they do that and we end up back in state court will have to deal but pending pending the possibility of a petition for rehearing i'm just get you know i'm just hypothetically talking here and don't let me go when you think i think i've won