please the court crossley alexander green has spent twenty eight years in prison for a crime he did not commit good morning your honor my name is keith harrison and i and my colleagues jean thomas and robert road represent mr green in this case the decision below should be reversed for two reasons the petition was timely filed and mr green is actually innocent with regard to mr grayson let me let me ask you a couple of questions here for of all if if you prevail on issue one i assume the case would go back to the district court is so then what happens with actual innocence there was not a certificate of appeal ability granted on that and  what do you do with that at this point when your honor the certificate of appeal ability dealt with whether the petition has i know but i just want to know procedurally if you win on a number one it seems to me to dispose of the appeal point with regard to the actual innocence claim there are two facts that are particularly relevant i'd like to highlight at the outset the first it isn't been briefed right i mean should we decide whether or not you  proceed our position has always been that actual innocence being a gateway to the time bar is well within the certificate of appeal ability but so i just i tell you where i'm at i think you've got a pretty good issue or what happens if the court sends the timeliness that sends the case back to the district court well it seems to me he filed a timely petition that was insufficient once he filed it the second time that was insufficient the third time he filed it  honor we believe that mr green was completely entitle to rely on the spirit doctrine which is clear and control in state law in this case and with regard to that with regard to comedy the left yes your honor we certainly believe that we knew how much time was left under clear florida state law we filed a safety petition which was not a shell petition but it was a lengthy and detailed petition it was doctrine mr green and his counsel had every reason to believe that the case had been properly filed and pending during the entirety during the entirety of the state court proceeding and it was not until  when the state raised for the first time that it might be untimely now the state has never addressed the spear issue the state the spirit case is nowhere reflected in any of the briefing of the court  and so they ignore spira and nor well settled state law the district court erred in ignoring the spirit doctrine and state law the district court relied on an unpublished honor if you file a civil case and i find that you've missed an element of the statute you're pleading under and i dismiss it and i give you thirty days to a man without prejudice and you come back and and file an appropriate complaint but that's out of the statute of limitations what's your position on whether or not you've timely filed a complaint your only my position would be that under the gap for situations where a petition would have filed a timely petition but that was facially insufficient but then the statute ran before the amendment and the whole purpose of bryant was from a due process perspective to allow that relation back and then in spira the court building on bryant applied that same rationale to thirty eight fifty one so it wasn't just death penalty cases which is what bryant referred to it was all post criminal proceedings so the state law is abundantly clear mr green and his counsel were see the florida rules as so procedure right that's correct your honor but also it's reflected in three point eight five one little parin f which says that applies it to the  you please go ahead yes the time between the first petition and the second petition and it was the second position that the trial court reviewed found was fa insufficient and invoked the spirit procedure dismissed it without prejudice expressly provided thirty days for a minute was a minute within ten and then that court ruled that it had been properly amended and proceeded with the case so it is clear that under state law it was properly filed and pending there in the entirety of that time frame to follow up on judge murphy's question what you're asking for as i understand it this is a question is you want us to send it back to the district court so that the district court can consider your actual innocence claims on the merits you're not asking us to do that now asking this court to do just that because when the when the case is sent back actual innocence is a gateway not only to the time barba to other procedural bars which may crop up and as this court is well aware there are a minefield of potential procedural bars that could crop up in a district court and if this court were to rule that there is compelling evidence that mr green is actually innocent it would open up that gateway it would actually make the district court proceedings much more efficient mr harris and you have a terrible burden in the actual innocence case because he can't possibly be actual innocent  lawyers to deprave their clients and then make a presentation that had three sessions in the u s attorney's office with counsel present when they made their their admissions that led to the conviction so prosecutor i would respectfully disagree when you when you put a witness as a prosecutor on the stand you do the best you can to assure that want to defense lawyer of reputation goes to the united states attorney and says my with sworn statements corroborating what they had told their own lawyers and so if in fact if what they said under oath was fall off then i suggest that they the lawyers ought to be investigated for separation of perjury i understand your point your honor ok i just throw that out for your thought thank you your honor notwithstanding the rec tations there is compelling evidence of actual innocence in this case this isn't an unusual case this is a rare case where we have two police officers who sixty days after mr greene have been arrested  told the prosecutor in no uncertain terms that mr green is innocent based on their initial investigations and this was withheld from the government i'm sorry i'm sorry your honor from the defense  there's another point that's that's key with regard to those notes that were withheld and the prosecution withheld those notes and would not even reveal them and took the position that they were turning client privilege in fact the judge had to review them in camera before they were released but these notes also say that miss hallock initially told a very different story to the police than what she told the jury and the police subsequently in fact miss heloc told the police that she and not the black guy had tied her ex boyfriend's hands together that is a key fact that was withheld from the defense that was a flip flop that would have been devastating to the only witness credibility at trial and that was a constitutional violation that undoubtedly impacted the jury's decision other than you say thank you  please the court counsel good morning kelly neal and on behalf of the florida attorney general and department of corrections it's our position that in two thousand and ten or two thousand this court held that a thirty eight fifty that is not sworn is not properly filed and does not all the time under the a t p a that was the early case in two thousand and of the holy case the document the defense was trying to get to relate back w health side of the statute of limitations so we have a different case here do we not know i don't know that the thirty eight fifty was filed outside of the the document for which the defense was trying to secure a lation back was filed after the statute of limitations had run as opposed to what we have here although the document for which they're seeking a relation back was still fall within the statue of limitations that wouldn't even make a difference though i mean it's black letter law there's like pretty much only one rule left since the a t p a was passed and that is a motion and state law that is not properly sworn is not proper filed under the d p a i mean that has been the black letter law it within this court for the last seventeen years can i point out what i believe is a mistake in your argument  say repeatedly that mr gray never asserted actual innocence in his petition but on the day he filed his petition he filed a memorandum of law in support of his petition and front and center as is climb of actual innocence in his petition where is says please explain why the statute of limitations doesn't apply to your case he pleaded made that argument my point is that simultaneous with the filing of the petition he did assert claims of actual innocence i understand that but if you will and you acknowledge that that is true actual innocence is no acknowledged that that is true correct but actual innocence is not a stand alone federal hades corpus claim it's a gate wait to be able to file an untimely petition it's also a way to overcome a procedural bar in claims that have overcome not only the on timeliness but the procedural bar on success of petitions right that he could and it would all be responded to it wouldn't have been raised in a reply brief in the court would have you know ordered us to respond to it  absolutely he could do that but i'm saying this petition he cannot do that in this case and i would also like to point out in his his actual innocence claim just because it wasn't fully addressed i'm not going to fully address it  is addressed in the in the letter brief but his deputy were actually i was rereading the trial transcript a couple days ago in this and deputy reccy testified that he had no contact with ms hallett that night she was brought to the crime scene the complainant he said she was in the other deputy's car i never even talked to her that night so for him to now be saying i mean that that flies in the face of everything that's in his so i would ask this court to firm the order of the district court not respects th with regard to the points raised by the state hurley first of all was a decision in two thousand it was pre spira and therefore we believe has been superseded by the spirit doctrine in addition in  case despite numerous opportunities to cure the defect in that case the defect was never cured so it is factually in opposite to this case with regard to the state's argument that  did not anticipate that our petition was untimely because it was not untimely and therefore there was no basis in for for us to put in the petition a defense to an timeliness at that