simultaneously in state court and the record and the issue evolved differently in state court and i thought that too to be fair to both the court and repeatedly denied both personally and through his counsel that he had a prior felony conviction he said he only had misdemeanors he said never got a stay prison and that turns out to be true the trial court made it clear that  and she asked probation of the prosecutor twice to give them continuance is to determine whether it was a misdemeanor or felony she said quote if it was a misdemeanor then i should not i cannot sentence a man to four consecutive life sentences because of his prior criminal history if we don't have children one after the continuances the information the judge wanted couldn't be verified she went ahead with the sentencing holding that she had said it over and over again three times to the sentencing judge i believe as well as to his trial and his appellate counsel and he raised on direct appeal although under a different theory than what is process was violated by relying on unreliable and suspect evidence prior yes but here he's st of all that was part of the change that occurred during the course of the state court proceedings that happened while we were in mediation which is that the the rap sheet the issue here is a massive clearly has information relating to two different people including a white person with red hair ok but the information that he had received to prove that he had a misdemeanor he didn't obtain until twenty five years later i was that the question brady violation that the government didn't turn it over to him and you know i think it's relevant that not all it's not just that he's in prison but he's illiterate and it was that this point he has cemented he has dementia well how does he get it how did he recently get this in for what happened was that another prisoner who was assisting him with this case so just of the four you request and that other prisoner who also wrote the proposed petition here made before a request for him and he was able to get it and he saw the confusing rap sheets and he filed the state he is or excuse me the new federal petition within a few months after that so i guess what i'm saying is given the fact that he was represented by counsel none of whom even though he told them about it none of whom obtained that information then he didn't get it and the state concedes that he did evidence that if proven true would make a difference there could be many different ways in which if you were to prove that he never have that information that was withheld from the government that there was this even if you knew about all the problems you know back in the early one thousand nine hundred and ninety s this is the sentence that i was prepared to give you and the fellow he played no role i mean this is direct evidence of all the rest of the stuff is now irrelevant that a defendant must satisfy in order to gain an exception to the general rule which is that petitioners are prohibited from falling stock and are successful petitions in this case mr thomson must prove the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and more importantly the facts underlying the claim of proven and viewed in the light of the oven and says a whole would be sufficient to establish his burden is clear and convincing evidence above for constitutional error no reasonable fact finder would have found the op can guilty of the underlying offense the court this court has there at least to my research there's nothing that the court has said that it spans actual innocence to innocence of the sentence imposed mr thompson was convicted  trial of four pounds of sexual assault of a minor sentencing transcribes go into detail of what the facts were in this case but even if mr thompson were to show that there was some error with regards to this and my understanding from speaking with opposing counsel when he wanted to have additional briefing is that this was a case in california where it can be charged as a felony or a misdemeanor he was convicted of the misdemeanor so i don't think he can prove innocence of any factor that the court relied upon to impose the sentence in this case in this case what happened was the court at the nd sentencing hearing because the corps was concerned with with the accuracy in the record but the record and the transcript from the nd sentencing hearing reflect reflect quite clearly that the court questioned the perp role and probation division who prepared the pre sentence report in this matter and that it was determined that there were finger a number of fingerprint cards  where she said that this wasn't a history devoid of any crimes or convictions that it was a history that involved while and fences and the  is there is there any evidence that the government knew that there were some of these crimes that were being attributed to him did not actually belong to him well i think there was a wi of what was in the exhibit that mr thompson submitted with his nd petition because if i remember right there were about sixteen or seventeen entries on that in the pre sentence investigation report if my memory serves correctly there were somewhere between five and ten entries so the process that was described as far as taking the fingerprint cards matching them with mr thompson's prince it wasn't misdemeanor because it's apparently one of those offenses in california that can either be convicted and sentenced as a felony or misdemeanor so while the court i mean even  even if you found or assumed argument though that the court relied on it as a felony it was still a conviction that was on his record and it would have been a misdemeanor rather than a felony but i think the court made it clear that there were misdemeanors on the record that talked about bile and resisting battery crimes the did not merit leniency in the eyes of the court but his argument as i understand it is that he would not have received four consecutive sentences if if the judge had seen that had had the correct background no your honor there is nothing in the vat a law that automatically aggregates the sentences to consecutive based on a prior felony conviction that was totally at the discretion of the the judge weighed in on it after the fact right and said that it wouldn't have even knowing what apparently the facts are now it would have changed the difference between  her order denying the motion to correct in a legal sense versus her or her statements and sentencing she quoted a block that talked about specifically the misdemeanors then she weighed in after the fact with the the statement that i would be more more relying on the facts of the crime but that was also discussed at the sense in hearing so and the court did state in the actual transcript of the sentencing that in addition to the side to the side of portion with regards to the prior convictions missed and she specifically referred to misdemeanors but she also gave way to the argument of the fact that you know the facts of trial were that the defendant subject to the victim to almost daily abuse from age nine to after she as a death as in a death penalty case where you can show that an aggravator is invalid there's no such equivalent under nevada law in this case that you would say ok we defended the we have something that she can hang your hat on to say that the court relied upon suspect information in opposing the sentence that she did there just is nothing like that and again that's why nevada has that mechanism or i would believe it would be part because at any time the court can go back and look and see if they sentenced it defendant based upon suspect information and the nevada case law discussing that statutory provision is a pretty strict where they only allow those types of claims to be brought in those motions where the court did rely on suspect information or that the sentenced either exceeded the statutory maximum or more for some reason was illegal under the law and that just didn't happen in this case so i would tie it more to while they are couch it in a constitutional violation in this case they're basically asking for a fact correction in this matter because the sentence was within the constitutional minimum a maximum and the court had the discretion to run it either consecutively or concurrently based upon the facts and that's what the court did an exercise that discretion counsel i'm trying to understand they implications of the materials that were provided to us recently about the about the developments of that a court so if we were to grant the s o s we would send this back to district court while the district court deal with it and up the hearing and then ask the trial judge to come in to come and testify the trial judge has already ruled on the on this precise question it's been affirmed by that about a court of appeals so what where's the there there what what what we get what would happen if we said this back to the district court your honor i i think i think part of it would be that in least to a claim that  the the cord relied on suspect evidence that claim is now exhausted to the extent that they would raise the brady claim with regards to you know that the state allegedly hit some type of evidence or certainly doesn't match up i don't for i don't even if we had a brit if we had a break even if we had a brady problem what do we do when we have the district court who issued the sentence say it didn't influence me and i would have given the same sentence why would i would i would think your honor that it would negate any type of showing or needed showing by the petitioner on the part of either prejudice under brady and other words  ineffective assistance sentences and then again two thousand and seventeen saying essentially the exact opposite and the way to how to reconcile that and why does it not make a difference well it does make a difference makes more difficult obviously for the petitioner but when it was brought back to her on the state statute that allows her to look at whether or not she had  you know inadequate information or wrong information and sentencing the only issue that was discussed was whether or not it was a misdemeanor or felony it was a misdemeanor it was not understood by the probation officer or the core of the sentencing court what she just doesn't have is all of the other factual information which can only be determined by a trial or federal habeas court and that is i think that there are facts that have to be developed and that could change the outcome in a resentencing mr mr thompson has been in prison for twenty seven years he's eighty one is demented he's a he's a problematic prisoner from the point of view of the state prison system i think that that it and if the trial court came to a different conclusion he would be eligible for parole and you know i just think that somehow these facts have to be developed in the i probably would go back to the state court with the full facts to reconsider th