because petitioners allegations do not meet the high standard apply couple to constitutional claims based on alleged state court evidentiary errors with respect to the cross appeal this court should affirm the district court's judgment that the evidence in this case which included eyewitness testimony the confession and accomplice and crawford and physical evidence was sufficient to up hold just next conviction of murder resulting from the attempted robbery of the express restaurant i have so it's hard for me to imagine a case with thinner evidence the pictures of the green jacket you think are corroborating not sure i see it that way and there isn't really the best you have for his confession is actually here say hotelling  well there are additional items your honor there is the statement by a nother accomplice david cole at that at his sentencing hearing his plea hearing where he implied that he had responsibility for the crime i saw that statement and you know he says i'm very sorry and it doesn't actually say mister smith anything maybe you're reading a lot into that i'm not sure i can bear the weight that you're trying to put on well your honor the we need to of course make inferences and favor of the state for the prosecution we must view the evidence in the light most favorable to the prosecution but that doesn't mean jump for five or six bottles steps i mean of course that's the perspective jackson against virginia has held that for many years but the state seems to be of few mister smith loses unless he can prove beyond a reasonable doubt to saeco people did it but that's not the jackson stand now absolutely the burden the process the burden of proof at the state court trial was and the prosecution now of course we are not retrying the petitioner at this juncture at this juncture what we are doing is applying two levels of deference but turning toward the the specific back to collect specific statement st he didn't just say i'm sorry he  said you know it wasn't supposed to turn out this way if i had known it was going to turn out this way i would have done something different so it's not quite right that he simply says i'm sorry for your you know that you had to watch us so you're saying certainly implication and you see that statement as tying in mister smith as opposed to kalat saying something about his own responsibility where we get mister smith out of that state well the whole issue in this case your honor is whether group a did it or group b did it well that class is certainly it's not really it's the issue is is there proof beyond a reasonable doubt that smith perhaps with hotel maybe a little bit more remotely with collette and the other person well i don't know when is it your position really that once a jury has ruled in a case that  deference means that it's just categorically impossible to meet the jackson versus virginia standard well now it's not categorically impossible your honor but it is difficult and here we have  we have the confession an accomplice made multiple occasions which included facts that were consistent with the testimony of the eye witness eduardo part of we have you're talking about hotel ings confession which doesn't correct which is mixed up actually well your honor the confession doesn't have to be perfect to be used as evidence of course and of course not worth valuating it's compelling nature tell me what was in his confession that was not publicly known or fed to him well he testified that only the petitioner carried the  and then later your honor when the detective showed him a picture two pictures of there it one was a revolver and one was a separate handgun he picked the wrong one but well again there was the fact that i believe the petitioner carried only particular of the gun it was a little twenty two there was also the testimony i believe this was not public at that shank sure which in here directly describe where he had run after the crime to the which way he had run out of the restaurant and so there was that those pieces of evidence  even aside from the fact that there might have been leading questions once again there still was the confession which you know in which he confessed and which is consistent then with collette statement we also have the other problems with with and the descriptions i wonder if we could focus on this evidence that was excluded one of the i want to get to the heart of the district court s opinion i was very troubled by the exclusion of the information that percent kept cash and cocaine at the burrito express and i know that there are some pictures of the burrito express in the record this is not some place that screams out there's going to be money here it's a little tiny burrito stand with two dollars tables inside i and the jury is deprived of finding out that the other group the group b that you're talking about that to seek a group had and had it so see ition with that place had a reason to go there i mean in our drug cases of which we see far too many we always hear the police saying that money and drugs are found together i'm very troubled at the exclusion of that evidence and  its importance in showing motive of one group and lack thereof of the other well your honor the petitioner was allowed to present evidence that he that the members of the deci could grab the head told others that they had went to the burrito express restaurant to rob it in order to get money to purchase drugs this was exactly what the motive that they had described and they were allowed to present testimony from multiple witnesses regarding this exact motive but there is no more to it i mean that might be their hope but there are probably one hundred restaurants in the area they could have done the same thing with if they wanted money anderson would have said that in the week before lives and went with him to the brito express to buy drugs and th source of high quality cocaine there's meat on the bones and the state certainly was more than happy to give all the circumstances hotel ings confession in omaha i just don't see the jury getting the full story about the strength of the motive evidence on this side just wanted to rob someplace to get money ok fine that's as far as it goes that's fine but this is very meaningful evidence a few points your honor again this was the motive actually ascribed by the witnesses but by the did she go great they said they told their friends we were going for this reason and they were allowed to present such testimony but the cook respected the information about the relationship but the fact that andersen had already done this they knew there was going to be more money than usual a jury could  r at the burrito express whereas we don't have anything that links smith and ho tal into calling it's not just that the drugs may have been there that they were going to steal drugs it's the inference question that mode of evidence is often key most of the evidence can be here and again petitioner was able to present the relevant motive evidence i mean this case the idea that the motive that ends with anderson was central is also belied by the fact that it didn't even come out and you know wasn't a part of the nd trial we hadn't even heard from this patrick anderson fellow i don't know why that's relevant what's proffered the trial whose results is are now before us and you know this case of course had a long a long history and well it's just this have the evidence that he wanted to anderson's testimony would in no way have been counted gives important additional detail tying the chico group to this particular place to this particular victim all of that and we have more of a god you know that that's associated with the jiko group that can't be ruled out as the gun in question it's the same type one of the bases just to pick up on the same line of question one of the bases that the state court gave for keeping out this mode of evidence is that it would have been confusing to the jury how could that have been confusing to the jury the evidence the evidence and i think that lump it together out of just a bit that the evidence of drugs being sold to the prieto express which would suggest that there's going to be cash there through there might be less rugs there as well but there's going to be cast there so all of that evidence the trial court or there was constant court said that would have been confusing to the jury that was a basis for keeping it out it would have been confusing to the jury because there would have been a sometimes it absolutely does and the testimony would have been from an undercover officer that whenever he went to speak to percent know about drugs for say now told him to go speak to this other gentleman by the name of doesn't the jury hearing this is this actually goes to the main appeal not to the cross appeal even if you're right that there might have been scraps of evidence that would have supported this verdict i'm not sure you are right  maybe let's get through that we have to have confidence in the verdict we have to make sure that the state court's decision was not objective lee on reasonable that's why we have to make  have to determine that it was objective leon reasonable for the state appellate court to find that this was harmless if it wasn't heated air that there was indeed just undermined your right but the supreme court says with a point there are a fair minded jurist could not find could not disagree as to whether there was more than a reasonable possibility that this  inclusion of this evidence made the difference and again we have that issue of andersen who is a career criminal showing up ten years after the fact describing incidents that have ten gentle relevance you know what it's i don't agree with the tangential relevance and i guess another thing before you run out of time i'd like you to address the last of concessions we have from the chico group people over and over again well one thing to note about those that plot thread confessions is how unconvincing they really are so they for instance switch stories sometimes even within the same telling they are inconsistent with the physical evidence and the eyewitness testimony so for instance the chico herself in the same two thousand and six statement st says that the that highland and the band the members of the chico group that had allegedly committed the crime st she says they were wearing ski masks then when why did you say if there are any ski masks why did they have to wipe off the blood from their faces she says well actually helen was wearing a scarf and so in the exact same statement not only does she change her story but she changes her story in such a way that is inconsistent with pardos statement that they were wearing ski masks so it's another example i'll just say that that those ski mask and scarf are different but i don't think that the differences with the jackets are any greater or less than that and you brush them off as in consequential the difference in a black small black embellishment in a jacket if you look at the jacket looked at  other flap your honor one thing to remember also is that part of his holding the the man in the green jacket from behind so his description of the back of the jacket is going to be probably better makes more sense for it to be more accurate then from the front a but again i'm not sure you could you could say that given what was going on i don't think he's really focusing on the jacket when he's got somebody with a gun shooting and and the other person who just came in to rap and i'm not i'm not sure that's not to be his focus your honor he's holding the the assailant in a full nelson so the jacket would be right there in front of him walking him back home worried about another guy out there with a  gun i don't think he's going to be staring the specially resented that the guy down at the details of the jacket sorry if i tacked over your honor the he st walking him back and then the man with the gun respect to the saeco groups the evidence of their various confessions to friends and family my recollection is that the state of this rd trial attacked the evidence of those confessions as you know since bragging and pleas for money primarily and i'm concerned about the other major evidence excluded here which is the evidence of highlands confession to a lawyer you know restaurant a awfully strong evidence to to counter the state's hearing of the other do secret groups confessions well your honor with respect to the highland confession pradhan lots of evidence of hans confessions and the detail that a lawyer was present for one of the confessions doesn't really add anything because his friend daniel trumbull was still present at this confession and so any of significance to them friended found the lawyer for exactly he so there's nothing really to take from the fact that he so he didn't seek out a lawyer his friend sought out a lawyer for him they met at a public restaurant where anyone could overhear i think he was older than happy that he was young the point is and then any if you what was he going to lie to his friends or can see that he had been lying to his friends there's who told him there's really no potential he wasn't worried about potential prosecution because other people had already been arrested for the crime and the there wasn't to split this between us for pedagogical and other reasons my name is david meant as i can and i would like to address the cross appeal that is mister smith's appeal from the denial of the portion of the but if i could start with one of your one of the questions that you put the state to judge would about what is what in mister holding's may two thousand and one statement was was not fed to him accurate and so on and you can probably you probably see in the chart and this is in the record it's not one hundred and ninety one and we've dissected the statement and gone through and demonstrated that in fact there is nothing there and the one thing that the state came up with here if i can refer you to the transcript of that statement and that is it's document number one dash nineteen investigator asks ok and where did you run when you ran out of the a restaurant i three are you familiar with that area answer no i'm not question ok did you run behind another building answer i honestly can't name one thing one thing in the statement that was accurate given the rest of the evidence that was not said to him he of the state was an able to do that so i'm sure he meant a nd let me tell you the one thing that really has me thinking about your cross appeal and that is this we do have hope hota wings statement and it implicates smith and so i ask myself even putting this jacket to one side which i'm not blown away by but i ask myself will suppose the jury despite the flaws that you pointed out in that confession chose to believe holing confession is that by itself something that could be a sufficient evidentiary basis under all these layers of deference that we work with to support a conviction so in other words are we looking at the kind of case where it's not really so much a sufficiency problem it's a complete nose problem did the jury hear everything they should have heard or are we looking at a case where there just is nothing that supports that would support a rational jury in ruling as it did well the answer your honor respectfully is both you know that that's that's the issue in the direct appeal of the main appeal that missile berti bowl answer but focusing specifically on th efficiency issue what jackson tells us and what this court in long holds is you have to look at the record as a whole you make have to make a holistic qualitative susman of the record which is what i can tell from your questioning is exactly what you're doing you don't look at one thing in isolation so i think when you when you start off with mister holding's may two thousand and one statement you go through and you dissect it and you can see that it's not probative it by itself is not holding pled guilty doesn't that give his statement addition of reliability in given all of the layers of deference that we have that makes it different from just having the statement alone no your honor i don't think that's the case and that's really what you're we can't we wait credibility but it sure seems to me if i were sitting on the jury here that there had been a reasonable doubt raised by the group's involvement but that's not what we're here to do we're not here to reassess credibility we look at the reliability we're looking at what came in and here you have hotel and statement and you have his testimony in the  trial that he sed recanted on cross examination but you have on top of that the fact that he actually pled guilty and served twenty years sentence or was sentenced to twenty years for it doesn't that tip the scale under a  analysis no your honor for two reasons st of all the guilty plea is not itself probative after he had a key gives that statement in may of two thousand and one he stuck he stuck with that statement and i know the court creates necessarily creates an irrational juror it reasonable doubt and if you look for example in the tanner case that we cited i believe it's the th circuit although i'm not i may be confusing it's the th circuit the fact that there was just blood on the holistically and looking at it and reassessing and revealing credibility well i i here's i don't know the answer to that question but i don't think you have to answer that question in this case because let me let me talk briefly about what judge hamilton mentioned there is no explanation in the record for why hyland fifteen years old at the time of the crime i don't remember exactly how long after that that's the lawyer but here is a fifteen year old repeatedly making tearful confessions to family members to it to a lawyer to his roommates there's no explanation of that there's no there's there isn't even there isn't any evidence from him or anywhere else there's argument oh you know that he may have wanted to get street credit but there's at there's no testimony so i think when you have in the record something that is completely unexplained the state has no explanation for this alternative  has been committed by this is just an extraordinary case yes or multiple evidence of multiple confessions from both groups in group b competing for britain for the murder case and the you know you get the supreme court saying but even though the defense was able to chip away some of the prosecution case with some characterization that there were multiple confessions in the hotel group that's that's not accurate mister met mister holing is the only one who made incriminating statements and and you know subject to the debate know one of the other the other thing i guess i haven't like to make sure that you can address of is i haven't found supreme court cases actually green thing relief under the jackson stand let courts of appeals for having granted a v s relief under jackson telling us not to parse the evidence to finally what if if we were inclined to agree with you on the merits of the jackson issue what comfort would you offer assumed in defense of that decision when it goes to the supreme court well your honor i i think the most compelling thing i can say here is what you extraordinary this case it is i don't know whether there's a supreme court case that we could have cited that granted relief under the standard i'm assuming not i didn't do the research personally so i'm assuming there isn't a case directly on point because i have an excellent team who did this research but you can see the way that your sister circuits have interpreted this standard in the tenor case from six circuit in the gonzales case from the th circuit those cases present far less compelling evidence in favor of reasonable doubt than this does here i mean it's almost an embarrassment of riches on the huge chico case it got better and better as time went by and it's over well it's just not something you see these we were contacted and the record reflects that family members the family members of mister highland and ms de chico came in to testify against their own family members because they believe that they were guilty of the crime this is an extraordinary case an innocent man and the wrong guy really the wrong guy who had nothing to do with this he was in the area at the time he's been in jail for nineteen years here the evidence is compelling that he did not do it there's no there's no evidence in support of it for all the reason no reliable evidence to support and there is incredible remarkable evidence that somebody else did it and i think under those over your time can you please make sure that the video of the statement of mister hotelling is on file with the district court i attempted to watch that and if there's it's not on file or at least we couldn't find it if you could just make sure it's on file so that we could get it i would appreciate it your honor i greatly wish there was video there's only an audio and i believe i missed that sorry the audio ok i misspoke the audio was not on file there was a docket sheet but it was just a piece of paper the we couldn't get the audio from them so if you could just make sure that the audio of that statement is on file that would be great i  apologize for that your honor and we will do that i'm glad i am also hard to hear that you listen to it because it is incredibly compelling for mister smith's case thank you your honor i'm not sure how much time i my part i don't know but i'll balance it out at the end so m malamute doesn't have to worry about  harmless either individually or cumulatively and the mister correct my time i'd like to walk through the three r s and talk about why each category balance was essential and not harmless time and i also touched on why the what we said in coops was an attempt to distill what the supreme court has said we obviously are are required to follow binding supreme court precedent just keep that clear  dealing and other sorts of things that were somewhat far afield from the question who committed this murder well as respectfully as this court has already pointed out today this was actually not far afield because defendant to resign compelling evidence showing that another group of people and committed this crime so that bouncing was out was just wrong and reasonable and arbitrary and there can be no fair minded disagreement here about the claimed attorney client privilege for anything that highland said to him i think that that's not correct here because daniel trimble the roommate was part of that i mean he's not middle persons but nobody under nobody ever calls the attorney to corroborate this confession but i take it everyone agrees it happened they're trying was not called that evidence is not in the record but in addition to the fact that turmel was present this was also in a public island under no account was the trigger man anyway you know confesses about the incident but that i was where was the evidence that when highland came back that night he was banged up you know  nobles testimony would have been cumulative that's actually not the case just mentioned that and that was the attorney but that's not the same as someone who was there and present for a part of that meeting and would have testified not only th in there but that he actually confessed to the attorney if there's a confession that makes the difference or the fact that he was concerned enough that he went to an attorney to seek legal advice that gives credence to the reliability of the confession to his friends it is the it is the fact that the attorney was there and there were there was other evidence presented of silence confessions so  seriousness that he perceived himself to the situation and the situation to be so why wouldn't it given that to chico's testimony that highland went to see a lawyer be sufficient for you to argue that before the jury you saying then that the excluded testimony you could see an attorney about different things but it's the excluded testimony that ties it down directly to this incident this confession honor i appreciate the opportunity i'll just try my five minutes to make a couple quick points on the main appeal and a couple of quick points on the cross appeal st with respect to judge hamilton's question about chambers it's instructive to look at chambers to determine whether this case is actually like chambers and chambers there was the exclusion of three testimony by three witnesses that another person had already had confessed to have committing have to having committed a crime here of course at the did testified at some member of the chico group and confessed there's no person that they wanted to present to who would have testified with respect to mention that wasn't allowed to present such testimony so it's really not like chambers where where whole witnesses were excluded but were really in this case dealing with little bits of evidence and maybe the petitioner argues and maybe the court has some disagreements about how important those those bits were but it's not it's really unlikely chambers and in that sense and it's a good comparison to see whether the evidence in this case that is was excluded really rises to the kind of evidence that the supreme court has said would be a violation of constitutional right with respect to  e motive again the they again was allowed to present evidence that this other group was you know in the neighborhood looking for a way to obtain more drugs a multiple people testified that they were looking to rob the rest of the restaurant to take more drugs to get money to obtain more drugs the restaurant is close to where they are there's the prayer meeting with the with the victim i'm sorry can you repeat the question your honor i was trying to turn this around if if the state were trying to prosecute somebody from the saeco group for this crime a quick clarification we also stated that holding mentioned that there prompted there was the only petitioner had carried the gun and in addition to which way he went that only petitioner had carried a gun and was a little twenty two dollars and the evidence that defend the petitioner thinks is so compelling actually turns out not to be compelling so for instance with respect to the gun there is this twenty two dollars that cannot be excluded but a firearms expert testified that would be extremely difficult for anyone other than an expert marksman to fire this twenty two the way witnesses described it has been fired because it was a single action as opposed to a double action revolver so the forensic evidence actually doesn't support it the same with  twenty two because that's actually one of the most common guns out there well there are there are double action twenty two so they are single action twenty two's and double action twenty two's and the double action twenty two dollars would be able to fire this way whereas a single action wouldn't and in fact that was actually the the petitioner's counsel was questioning the officer about the origin of why they were why they believed that these people had committed the crime and why they were