subject to perl supervision for another three years a very restrictive position to be in he had to register for a sex offender but after all this time i am standing in front of the court with a finding by district court it's reasonably likely that the that the jury would have found differently that that evidence could have sway the jury i know the court is familiar with the case but i think i need to review the facts in some detail in order  is no i absolutely have cited to the court and there is no directly controlling supreme court case law that sets out a standard for perjury other than one in augers which actually cited a dissent from the supreme court it did that that's correct to this court's decision in or take up versus duncan here what that what the state court said didn't even discuss the perjury of the extensive perjury and the material perjury that judge starr and found what the state court said is that decide whether the lawyer was ineffective i find no prejudice to be your position but that's not a ruling on the merits because they didn't address whether or not the way it was ineffective or not because i've since we are going here because the court didn't address whether or not the perjury occurred it's not on the merits so what  arguing here judges this is the entire finding by the state court i'm rejecting the perjury claim out of hand there was no analysis there was no determination now says that it was harmless that it was not prejudicial that's a merits determination is no it isn't your honor i think it's directly analogous to what happened in our tega it was exactly the same situation there which is my question effective assistance when the court says i'm not going to side with the whims in effect if i find no prejudice that analysis or not but i think if the if if it were analogous to this case where the court said i'm not going to look at any of this i'm going to find a way to avoid making a decision that was it was said what the what the state court said is that i'm rejecting the perjury claim out of hand there was no determination either even of whether there was perjury this was a disturbing deeply disturbing case the reason this is going on ten years later we're back in this co is because of what happened here this was a one witness identification one person's word against another person's word no physical evidence to support the complaining witness didn't report the supposed rape to the police until the next day when she did so she did so because she was essentially pressured into by an older woman who had taken a sort of mentor role in her that the prosecution had to come up with some sort of explanation for this prosecution also had to come up with some sort of explanation for why it is a man would rape a woman he worked with at at his work who could identify him and have him arrested and the prosecution came up with crafted an explanation for that which was that the complaining witness jane martinez was this timid woman who immediately mr ray as could three witnesses who she reported the rape to one within thirty minutes under current she reported christine i think she reported it to one person who thirty minutes were pointed at to others yes judge but it's the same people the next day it's the same thing to other people it's the same thing it's her accusation and what we have now ten years later is witnesses who say she was sexually interested in mr ray as she said so she was flirting with him the day of the rape she lied about how it is that he supposedly lorad her to some remote location on the pier and raped her she volunteered to go down there with him she told a big part of the prosecution's case was that she had reported his increasing he was essentially testing her to see if he could write this woman who knew him and c identify him with impunity and he tested that arguments assume that there's no difference if there is deference we don't analyze any of the things that you're arguing right now right judge we started out agreeing that if the deference applies i'm saying deference applies so there was no analysis of whether the batson violation occurred stick which is it even if it happened it's harmless and then there is the one that i was referring to before where an attorney was alleging effectiveness the state court said even if the train was what the impact was that's why there's no offense because we're we're not there we were in a position where is no such finding here judge what the state court said is i'm rejecting this out of hand there was no determination of the credibility of witnesses there was no even consideration of the effect of the perjury or frankly finding that there was perjury it was a way of ducking making a decision and i would urge you to find as you found in or take it that that is not a merits determination morning your honour's my name is lisa fleishman and i represent the state of the supreme court held in eggers that claim a due process claim based on perjury has three elements there has to be false testimony that could have affected the verdict and the dollars court found was that there was no prosecutorial knowledge of perjury and that defeated the claim and the district court accorded that finding deference and went through the eggers standard and concluded the same thing that there could be no relief based on a due process violation based on perjury where there is no prosecutorial knowledge the prosecutors knowledge is the state action which forms the basis for the process violation the fact that the district court also engaged in some fact finding doesn't change the four hundred and forty court's determination into one that's not on the merits the ortega case is  different from the situation here they're the four hundred and forty court did not determine the perjury claim on the merits in fact i don't think in either the district court or in this court's opinions there is any contention that it did there the  court simply said orally that there would be no different verdicts and then explain later there would be no different verdict because a different eyewitness had come forward it didn't assess the impact of the perjury on the trial on the outcome  it kind of substituted the witnesses which is sort of and other ground than eggers there was no application of clearly established priem court law in or take as there was here and for that same thing for ineffective assistance of trial for forty court held a hearing on that fact and in the course of holding that hearing heard from the perjury witnesses and rendered a decision that counsel was concluding that the prosecutors had no knowledge of any type of potentially perjured testimony that's correct which decision was that and that was in the four hundred and forty dollars decision or some other decision that was in the pre hearing for forty decision i want to say the pages  judge you're right if you find that differences do then that then that's the end of the end of the story but deference to the finding that there was no knowledge by the prosecutor wasn't that finding in trouble today i haven't claimed it was and i haven't duncan it was exactly the same analogous situation there there was no finding as there was no finding here that the trial by the trial court by the state court that perjury had been committed and the state court found in in that case an alternate method to firm the conviction and that is exactly what happened here there was no finding there was no engagement and basically i think we tega is consistent with the requirements of a which is deference to state courts federal courts are not supposed to be sitting as appellate courts over federal courts but there's also a requirement federal courts police at least the outer edges of what happened in state court and this is way beyond the outer edges of a finding by a federal district court that perjury was the complaining witness the only person other than mr ray is knew what happened committed perjury dollars proceeding determined that whatever occurred the prosecutors did know about yes if they if they're handed that isn't that have a much better argument and and you need to bring a constitutional claim your best look is due process and don't we know from what the supreme court has told us that without the prosecutor's knowledge of the perjury you don't have a due process claim no what we know from the supreme court is that  process claim exists when a defendant is able to show that the prosecutor knew and obviously the question of should have known it's up in the air but definitely want to prosecute or knew that perjury was was have a we have a factual determination that the prosecutor didn't know that that's correct but what i'm saying your honor is that the legal issue here which is what standard should be applied is the standard that this court that's interesting because china has decide in two thousand and three exactly this and so it's as i recall exactly the same year as duncan versus or take a versus duncan and less this court is saying that i would argue that unless you're saying take a versus duncan is no longer a good law unique because they want to analyze what happened at the actual trial they were predicting what would happen in a future trial and that's not entitle to deference because nine allies and anybody can do that there's no need for deference on something like that anybody can try to predict what's going to happen and i would suggest that