crime that he was wrongfully convicted of in section twenty five thirteen congress created a statutory scheme that provides a certificate of innocence to individuals who are convicted of crimes that they did not commit charged and that's in section twenty five thirteen subsection to meet his burden of proof mr holmes presented significant amount of evidence demonstrating his innocence in response the government relied on a single affidavit which was prepared by police officer allan ray eight years after the incident the affidavit was not subject to cross examination at the time allan ray had never testified line and the affidavit excuse me the declaration was severely impeached by photographic and testimonial evidence that the district court ignored in its opinion somewhat related to the appeal we just heard but even more dramatically so in this i think five page opinion no facts were found no factual findings were made no credibility determinations were resolved no reasoning was given so difficult for this court to even identify how the district court was able to credit the whole three page declaration to the exclusion of all the evidence that mr holmes submit of course along requires here as with any factual dispute that the district court was required to weigh the evidence of innocence against any competing evidence of guilt offered by the government and determine if mr holmes met the preponderance standard which of course is below a standard of proof and is satisfied if the scale tips even slightly in the movements favor but the district court did not do that instead it ignored and incorrectly believed that the mere presence of a declaration from a police officer was fatal to mr holmes as motion and in so doing it effectively applied a much higher burden of proof than is in fact the applicable applicable burden which is  might something more akin to clear and convincing evidence or even a reasonable doubt standard where the mere existence of contrary a country statement of inculpatory evidence would be fatal to the motion who could in the district court clearly did not make credibility determinations had it done so it would have had to contend with the fact that the only lived witness who the district court had heard from by that point relevant to the  testimony at trial and there was no evidence that he had made false statements to the police or in any court proceeding furthermore holmes it consistently maintained that he is innocent and that shar  part of this proceeding doesn't that doesn't that change things up quite a bit then allow the court to make make this credibility determination and in the order on this order that that we're talking about the court makes the statement that he was a witness with firsthand knowledge of the events and his credibility has not been impugned so doesn't tell us the court might have credibility determination so that the credibility determination the court would have had to make had it actually made a credibility determination is rain versus hope rainy submitted a three page paper declaration she was aware never been found to make false statements so she's if the district court is credited with making a credibility determination at all which your honor i submit did not do it would have been seeing a three page declaration from a police officer is more credible to me than the live testimony of mr holmes that i previously said while aware of your a being out there and having seen the declaration that mr holmes is a credit testimony i previously found w credible consistent and unimpeached is somehow discredited but the district court doesn't say that it did that it's the district court simply said i'm not going to look at  of evidence because i have this declaration from mr ray and i think there's no better evidence that it didn't actually consider mr holmes evidence than the fact that it ignored the photographs the photographs are a real problem here and i think this alo so relevant that i'd like to take a moment to explain when you walk into the house there's two and it's sort of a a large rooming house i guess you'd call it lots of rooms and different people were renting different rooms at the time m and the significance of that is shell sharp who has been thoroughly discredited at this point wrote in his police report that he saw mr holmes on a staircase holding a bag of drugs and that when he saw mr holmes the mr holmes saw him mr dropped the bag and rang there's only one staircase that leads to the third floor and that's the rear staircase the problem is you cannot see the rear stake staircase and you don't even know it's there when you enter the home you have to walk all the way through the house to the back of the house and then you see there's a staircase and it's a narrow switchback staircase with a hygienist or so as you're walking up the staircase you don't even know if there's someone coming down in the lead on the fly above you that's the viewpoint mr holmes submitted some photographs which to this day have never been challenged as not fairly and accurately depicting the  first opinion says nothing about the photograph and the second opinion explains why because in the second opinion it says we're not going to consider photographs as newly discovered evidence because you could have submitted these photographs the first time around but you failed to do so that factual finding by the district court that that mr holmes failed the photographs is wrong it's clearly erroneous and it requires reversal because mr holmes had submitted the photographs he submitted them as an attachment to a supplemental reply which sought leave to to file and that leaves us granted and i don't know why but the district court apparently overlooked the photographs the photographs ar evidence because they directly impeach allen ring his declaration and head and there's no better evidence of materiality than the fact that in a civil trial where mr holmes is actually given i hearing and of course part of the civil trial and in the civil trial the jury heard from alan ray it heard from shell shark and heard from bobby garrett it hurts mother police officers and in that resound ing leak quick verdict where believe that the photographs it chose to believe mr holmes is consistent testimony of innocence and his explanation of what he was doing that day and it said there was no probable cause to arrest mr holmes the police had fabricated the evidence of his guilt and that he was an innocent man deserving compensation for his time spent in prison so the photographs are material evidence and the district court failed to consider them there is no mention of the photographs in the original order and it has to be corrected on that basis mr holmes at least deserves the opportunity to question alan turing and to provide the court with evidence on an argument on the photographs and on fingerprints nothing linking him to the drug or firearm evidence and there were documents showing that he lived for ferguson at the time that this occurred turning to the rules sixty motion oh my goodness i have to quickly proceed because of my meeting i'm a rebuttal time alan ray gave testimony in the new trial in the civil trial which is newly discovered and it's it's it's required that justice be done in this case to correct an iranian judgment by the district court alan raines declaration it's based on personal knowledge he doesn't really it's based on personal knowledge and he saw mr holmes on the staircase committing a crime a civil trial he revealed he had no independent recollection of the event and that before his declaration he reviewed shell short's police report that's a new revelation that was not in his declaration in fact something exactly the opposite was in his declaration which is that he's basing his declaration on personal knowledge and what actually happened was you don't remember this he's a police officer of twelve years at this point i believe it is then many many stops he doesn't remember what happened when mr holmes eight years later the government tapped him on the shoulder and asked him to provide adequate excuse me a declaration and in so doing they provided him with the police report of the incident that police report the jury found was fabricated it was written by shel sharpe has been thoroughly discredited and alan ray review the police report and then wrote a declaration which is which is a mirror image of the police report and so now that we know eleanor a didn't have an independent recollection but reviewed the certificate of innocence and there's good reasons for doing that just laid out some of the historical factors in the legislative history regarding the statute but i think a couple of key factors this court should should know first of all this is a waiver of sovereign immunity statute hence it is strictly construed and the statute confers strictly and directly on the trial judge that heard the case the ability to determine whether or not the certificate of innocence should be granted in this case therefore when you look at this case in total the two big questions that are presented before this court is did the district court abused its discretion in denying this which have been innocent and did the district court abuse its discretion in denying the trier of fact it has to deter ability to determine as any trier of fact to determine except all the persons testimony none of the persons testimony or some of the person's testimony in this case they noted that  don't know that no facts no no factual findings were made no credibility determinations for made yet the district court's decision of innocence belies that for example you know she notes for example that not only did she quote raise declaration saying that this is a first hand person with knowledge of the events she also notes right after that several other factors that go into determining why she denied the certificate no since she focused on his presence at the at the house fifty eight ninety four ca she focused on the fact that he was present in the room where they found the drugs the heroin the four thousand dollars she focused on all that and she also focus on the fact that she that holmes apparently made a statement to police which ra corroborated so she did make credibility sean nation she was choosing to believe certain aspects of holmes as testimony and not choosing to believe certain aspects of his other testimony regarding for example his innocence for example holmes in his trial testimony never said that he made a statement to police for example holmes never stated that he owned any of these things but the district court decided i'm going to credit ray's declaration and i'm going to create some of home this testimony because they corroborate meaning his presence at the house of contraband in a place where he admitted he was there so did the did judge jackson overlook the photograph she did not and let me let me point you that i'm glad you asked that question the section of the photographs that the applicant points to is from her rule sixty motion the rule sixty motion is the determination of whether or not there is newly discovered evidence and the newly discovered evidence of the applicant relying on in the rule sixty motion the civil jury verdict the pictures and raise test morning apparently the inconsistent testimony of ray which we don't believe it was so when you look at the district court order she does say that race testimony they have an opportunity to rebut ray's declaration but she's talking about ray's trial testimony because his trial testimony was based soley on the declaration if you look at the trial testimony in the civil case those pictures were not brought up they did not they did not affect earlier but him they did not impeach him and that was the whole point of her tenor in talking about the pictures i don't believe the district court ignored the pictures as a matter of fact as the applicant pointed out those granted so i don't think from this record we can assume that she ignored the photos and even if you even if she did she is within her means to credit that testimony raise testimony over that the point is in the let me turn now to the rule sixty motion the reason the rule the only basis for the rule granting the rule sixty motion and judge jackson pointed out was whether or not there was anything in the civil trial that would have contradicted his declaration because if there  declaration then it would be newly discovered evidence and therefore it could be considered honorable sixty but if you look at the rule sixty motion she carefully goes out she says while his testimony is not a moment of clarity he does not he does not contradict himself he maintains the story that he maintains the situation as he stated in his declaration and he further points out that the trial that the trial counsel had the ability to to bring up the fact that he had his declaration but they never showed it to  they had the ability to bring these photographs but they never did that was what judge jackson was talking about in her rule sixty motion well when you when you look at the photographs are they are they vitally inconsistent with   when he sees holmes coming down from the third flight of stairs so and then he sees the back drop then he comes back and runs after him he run rate of holmes runs and right runs back after him so i don't think it does and the matter of the fact is that you know even holmes testifies that anyone that's coming down that staircase you would hear that from anywhere throughout the house so whether or not he actually had seen him or not i don't think is the point clear there's only one person that staircase you hear someone come down and you hear them run up and there's no one else there you can readily conclude that was the only person that was up and running up and down the staircase so i think that's sort of an irrelevant or irrelevant point to make but what we do know judge i think the feeling here is that is an important thing to know and i want to i want to stress just to the court that this court can affirm on any basis in the record even though it wasn't argued by the parties now in this case the only issue between that the parties have argued is whether or not he committed the actual charge the second prong of twenty five thirteen but it should note that in both the rule sixty and in the certificate of innocence judge jackson noted that ray indicated and stated that that he saw he saw holmes run after does not only factor in on the innocence but it also factors in on that third prong too because he runs you know of course the police are going to think that you're guilty or that you're not innocent in this case and moreover if the  wasn't charged it's a violation of revised missouri statute five seventy five one five zero one which says that fleeing from a police officer attempting to make an arrest or stop is in fact a class a misdemeanor so clearly clearly and that's clearly not the case so let's start with the legal aspects of a force is an evidentiary hearing required the statutes silent on that point and the keating case from the southern district of new york which is the seminal case regarding this examination of the history indicated that typically the evidence presented by affidavit and it would rarely be done by testimony now in this case does judge jackson have the ability to your credibility based on the affidavit and the testimony and she does this and here's why because holmes did and while i'm there briefly indicate he would be unreasonable for her to get an affidavit from holliston saying that the drugs in the guns were his i would say i would beg to differ as a matter of fact this incident occurred in two thousand and three this whole proceeding took place in two thousand fifteen the statute of limitations has already run it would have been a small matter to find one holland and say hey these are my drugs these are my guns i was living here you know mr holmes had nothing to do with it but they didn't admit that they did not submit that they had the ability to do it and didn't do it and i also want to point out the importance of of the fact finding hearing and i want to focus you on the grubbs case from the six circuit is very similar to this case because it talks about a person who was convicted felony possession conviction was overturned and then therefore he sought a certificate of innocence in the grub case there was actually testimony that the gun that the defendant was claimed to have possessed was actually owned by his brother you know but then there was also competing testimony that you know maybe perhaps the gun the defendant did possess a gun when he flourished it at another individual even though that person who claimed that if it flourished it could not identify the specific gun or cannot even identify what this the exact gun that th stress the fact that when the court set aside the original conviction that it credited holmes testimony and it it strikes me that when one is confronted with the openly corrupt evidence of two government witnesses it might be a different standard that you're applying when you say that there's a reasonable probability that one might find a reasonable doubt as opposed to i have found with a greater weight to the evidence the factual innocence glad you brought that up because you know i was looking at that too it's careful to see where she made that statement she made that statement about mr mr holmes as  statements in the twenty two fifty five she has to make that determination because once you strip away sharks testimony she has to determine whether or not the jury verdict can stand on its own and yes to also determine whether or not that whether or not one of the standards is whether or not the result would circumstances but because the dependent made inconsistent statements and lied to the police that's why she's saying that in the next paragraph she's saying this is not like she did lied which we have no evidence that he did and he wasn't inconsistent and order again with respect to ray's declaration all of the quote facts that the district court relied on she citing to raze declaration reigns declaration was proven false not only by the photographs but by this newly discovered testimony from a civil trial wherein he admits that he didn't actually have any independent recollection of the incident and that he was relying solely on shell sharp's police report your honour's congress created a statute for a reason when someone is wrongfully convicted of a crime that they did not commit they should be allowed to present evidence and to meet their burden of proof and receive a certificate of innocence it's it's a congressional right that was that's embodied in the subsection twenty five