was convicted after officers hearing gate engaged in well documented and serious misconduct participated in fatally flawed trials this court has twice said mr parents prosecutions to serve for their challenge him he could not have been in every single room at all times during the apartment search and he admitted when he testified that he said that evidence or  that simply meant that he was on scene not that he had firsthand knowledge of the evidence or however so you please when officer gorman testified he admitted at trial that it was his unit's practice for the supervisor to say as they testified that evidence was testified quote in his presence and so even if he didn't have firsthand knowledge he would testify based on what he heard from his boots on the ground officers  and so the defense had no notice that it needed to really press which of the officers was relying on hearsay versus which of the off that's recovered evidence and so for example the key to speculate about who possessed these two guns they were attributed to mr barrett they resulted in a sixteen month consecutive sentence and we bought quote that in our  the inference that he asked the jury to draw is simply because we think that the other two guns belong to the codefendant and these two guns belong to mr baer that is the wrong  whether a key is sufficient and even for individuals who lived in the apartment and had a key it's insufficient to show constructive possession so the government needs more there is also a defense witness who testified that she had not given mr barrett the key and this was not his apartment it was a friend's apartment and so the government's assertions that constructive possession are well founded here are not taken well once  that your honor because obviously the parties disagree about the role of decision here the district court did not indicate what standard it of review it was adopted in and our ground investigating police officers and they knew that they were engaged in misconduct that predated the trial and was contemporaneous with the trial they needed to be cross examined about that information circumstances it is brady material your honor because the police officers know what they do and so we as the defense don't have to rely on the police officers having some crisis of that well thank you for letting me clarify that your honor because it's our oblique it's our position that the government prosecutor has the brady obligation and so he needs to talk to each of the officers and clio there is not an obligation that the prosecutor himself knew of the misconduct when and i believe that's in kyle's the whitney when the police officers who were  rare the factual situation that we have here is very rare so this court cases and wilson for example which is i think it's in the brief but let me give you the cite in case it's not it's five and they are in a position where they're misconduct impacts the defense so seriously unlike a a traditional witness the press the police officers the prosecution with it foul were part of the prosecution team and could pick testified at trial and gorman relied on could chicken macdonald actions and information that they provided to give his testimony and so allegation anywhere in fact you don't even make it that there's anything any degree of material that you could have cross examined kovacs good switch gears for a minute before whether or not this is brady material i'm not sure it's even appropriate to be talking about brady because i'm not sure you penn asked made a pair of the gatekeeping requirements why do you say that you have this court granted mr barret twenty to fifty five to determine what portions of twenty to forty four have been incorporated so when we look at subsection a as i mentioned earlier that's the standard for federal defendants who are  for defendants who are seeking relief from a new rule of constitutional law that's been made retroactive and they do require that the defendant prove that in on remand to the district court and that makes sense because that defendant sentence was not illegal at the time that it was imposed however for individuals who are seeking relief under age one like mr barrett his entire theory of the case is that his sentencing convictions were tainted by constitutional violations and so when we go back on dream and we should have to show a brady violation or some other constitutional violation just as you would in a discovered it's newly discovered evidence but when you look to the language of h one it talks about conditional language it says the court of appeal shall certify the application to properly grounded as determined by the district court and the district court in this case did not find that that existed and that's why you're  convincing evidence standard but the textualists argument that we make in our reply brief is very strong that congress intended to defer to state court judgments but when there's a government there are several points that i would like to cover and of course answer the court's questions but it is explain why twenty to fifty five each one does apply here why the district court has an application to make sure that twenty to fifty five each one is satisfied and then finally talk about the evidence in this case which clearly shows that not only that the two thousand and twenty five age one standard is not but neither is the very greatest i will begin however by cutting out what judge mckee said about the concern that we have regarding the police conduct and i think that's not debatable i think the court's very aware that i personally as well as many of my colleagues have spent many years many unpleasant times dealing with the consequences of corruption in the file of your police department we take it very seriously we try to prosecute the feathers and it's the court well knows one of the precious effects of police corruption is that it often results in the need to dismiss cases of  people because you can no longer rely on the credibility of the officers involved and so we've had so many of these issues over the years and and have dealt with them but what we've done in looking at other cases and i think appropriately is we look very carefully to see whether the conviction of grass on the information of the teens and officers because what we also know is that the tainted officers thankfully as far as we know are still the exception rather than the rule the  department has thousands of dedicated officers who get up every day and do their best to faithfully inforce the law and so we're not going to just throw out any conviction because one officer knew another officer who we now know may be problematic so in this appeal we're not focused on the nd trial of mr barrett if we were if that were the conviction i have no doubt that that would be one of the dismissed cases that that trial rested completely on the testimony of officers who were later indicted by my office even if they were acquitted we would be very uncomfortable relying on that testimony but he was not he was actually mostly acquitted in that trial maybe by a savvy jury he was only convicted under nine hundred and twenty t j it was a fully concurrent sentence that was imposed and so unless a court has questions about it we're really focused on the two thousand and five case because that's what drives this matter and what the two thousand and five cases is a matter there relies on credible officers early as we have no basis whatsoever then or now to say that sergeant gorman or officer kovacs or the other people involved have any credibility issue whatsoever and that's where this case fails and that's why we do maintain that this verdict should be preserved in terms of the questions that i said i would address st twenty to fifty five age one that's standard requiring clear and convincing evidence that no reach and it applies here it plainly discusses newly discovered evidence which is what we have now there is an interest when the new claim involves brady and other courts not this court but have discussed the problem very  was litigated i was how can you now hold me to a worse standard that's not fair i understand that and courts have understood that and never the less faithfully applied the clear language of twenty to fifty five age one of the clearest discussion has to apply in this context despite the concern now i also should say that that concern that you're learning about brady information after the st ones if it actually doesn't apply in this case in this case the key information is  all of that was actually known in two thousand and nine and was disclosed by the government to mr parents attorneys in two thousand and nine and was brought up in his direct appeal in this court and this court acknowledged that that was not sufficient to effect a verdict because none of that information then or now was about the two thousand and five about any suggestion that mr critic had done a thing wrong in this case so we were really not in that troubling situation where you may have a pretty disclosure after the st twenty to fifty five but even if we were the case was unanimous that is two thousand and twenty five age one standard has to apply it was developed by congress to assure finality and habeas litigation and that's what it does one standard is met in order to allow any relief and in fact in this very case i can actually say it's the law of the case because in this very case mr barrett was st given a certificate of appeal ability or rather permission to successive station and they're very order and page seven hundred and sixty eight correctly says this is not a final cause it's still up to the district court as to whether twenty to fifty five age one is met and the recent cases that th and ninety six those are all cases just within the last three years in which the court has been fun but it's still the district courts obligation to make sure the standard is met i think i have the privilege as i look at it of losing on the merits every one of those cases  arguing to this court but but those matters do go back to this record for the district courts and then make the assessment and most of those defendants i know did not receive relief or were still litigating hundreds of those cases relating to the is there are twenty to fifty five age it says that in a federal matter this court has to certify that those criteria are met and what it says is certified as provided in section two thousand two hundred and forty four and this  therefore has always incorporated the standards of twenty to forty four with regard to nd successive federal petitions and in fact this court has explained at length why it's still up to the district court this court has explained that it's given this court is given a limited amount of time to rule on whether a nd a successor petition should go forward this court does not hear evidence merit merely reviews the papers and that's why we do have the fuller inquiry of the takes place by the district district i do think it was incorrect to say that it's a pretty issue now certainly maybe it's not incorrect in the sense of if it gets past the age one standard and shows clear glancing evidence of actual innocence then we do move on to brady i think by that point he also successive clearly conflicts with the language of twenty five dollars h one which talks about newly discovered evidence with regard to the evidence in this case the we have argued repeatedly that the way our squad and throughout the narcotics bureau your call to that location just simply so when we do come to court we can say yes we repair it in our presence and we could give you the condition or how it was placed so what he's saying as i  actually not he was explaining the in my presence but it was actually breath he was there were four or five officers who breaks the door and went in the search and they describe it in their testimony in graphic detail he was in that team gorman was in the apartment the entire time this was his case the so if you take out project at that point it just doesn't matter whether we're talking about the h one standard or whether we're talking about brady you know under brady is still the defendant's obligation to show a reasonable probability of a different verdict you can't me what this case relies on is going on he has never been accused or implicated in any police wrongdoing we rely on his testimony there's no reason for us not to what we've seen i think unfortunately and the very thing here is just widespread accusations of guilt by association and that's it there's a statement in the reply brief that says any of the corrupt police officers who were conducting the search could have fabricated evidence during the search and i think that kind of accusation does not mean it's one it's not brady it's not anything other than a wild accusation against officers who've never been accused of any wrongdoing has put forward no evidence whatsoever of any of it in fact they haven't even shown that these few allegations against project and mcdonnell even took place in two thousand and five the case that the government brought against the other officers came earlier because we disclosed them in two thousand and nine as i mentioned earlier but there's been no showing that any of that took place in two thousand and five but that but i'm willing to say take out food excess money is the only testimony or they could possibly be implicated fisher and ubiquitous is again again on the panel this opinion was was written by judge randell and let me just wrap up by reading just as one short raf affirming the sufficiency of the evidence it says here in addition to having been found in an apartment containing drugs and packaging material in plain view in the kitchen and guns hidden in the living room barrett had a key to the apartment in his pocket he was observed by the police disposing of trash from the apartment that was found to contain drugs and drug packaging paraphernalia and he fled to the nd floor when the police arrived to execute the war every single word of that paragraph that was written by this court depends on the testimony of corman and kovacs and no one else there is nothing there that even relies on critics testimony and this court held that that was sufficient to hold a verdict that's true then certainly nobody could say that this new information about p j many years later would lead no reasonable juror to convict the defendant or even that there's a reasonable probability of a different result that just doesn't doesn't work that way now i guess the only other factual matter that i should address evolves the the question of gorman testified that he personally saw page forty one of the appendix he actually got a little bristled on cross examination and he said i viewed the person that is your client seated over there in the blue jacket in the suit when he was down at the bottom and i knew him by face and immediately upon seeing him when i did the warrant i knew that to be him the man that came out on that day and we just can't relive it get it it was argued in front of the jury the defense had their witness they call the girlfriend who said no this was the only time there was ever in the apartment jury rejected it this court found the evidence sufficient there is no new evidence whatsoever that would meet either the h one standard that applies or the pretty standard for that reason proposal that the government is making is deeply troubling and that it can rely on supervisors who relied on other officers who were engaged in conduct that was involved fabricating and planting evidence was this was a multi room apartment it was a multi floor apartment building and he did not see all of that evidence being recovered and the defense had no idea that it needed to probe what he meant at the time the last point i'd like to make is about the direct appeal mr barrett challenge to the sufficiency of the evidence as to the nd trial and his direct appeal the gun that was allegedly found in the car he has now served has tenure custody all sentenced and here we are more than ten years later and the government refuses to defend that verdict the government though the concurrent sentence case law that cited in the government's brief but i want to emphasize that the government has said over and over there's nine i haven't here there's not enough evidence here but now we can scenes that when it defended those officers and cited to their testimony to this court it can no longer defend those officers and we simply ask that what happened at the nd trial not happen at the st trial and that at the very least we get a real man for an evident you the jury had to assess the officers credibility here reviewing the government's brief it seems like this was an open and shut case but once you actually look at the testimony this was not an open and shut case and we