police statement and he believed that sort of describe just how to feel but of course he never spoke to him and grady freeman testified exactly opposite to that when ms gallup and he did testify at the trial most hearing terror that he saw but of course as a district court determined the press mocked that argument because where it actually now we have no idea what this is about what's going on there so it was totally affected and it destroyed the purported  conjunction with all the equitable factors in this case provide a gateway then what was keys could you say to us that would save a quid in standing alone opens up the judgment that was rendered in two thousand and be confined in two thousand six ineffective assistance claim as this court will see there is absolutely no investigation done or no successful investigation into talking to these two critical eye witnesses both of them describe somebody who looks absolutely nothing like mr sat reasons why the sort of thing in equating was concerned about in terms of delay is presenting stale evidence here the evidence itself undermined the actual innocence claim was presented at the very first possible and it was an aggravator for a practical case so that certainly i think comes into the analysis but if the court had concerns about ten months and you know that it i reckon he said about be developed on the issue certainly it  reasonable diligence for equitable tolling really had to do with whether it was delivered in pursuing his stake or remedies because none of this time when his king's bench petition was pending w infections claim as you will see and it is also a strong actual innocence claim one hundred percent of the eye witnesses said not only this wasn't the guy but it looks nothing like the guy and there is not a lot of other evidence this is a tremendous about  condition what about his statement which tennis court it is an incredibly odd confession a year after the fact to a total stranger just the circumstances of this confession assuming it happened at all are enough to at least case it does say it happens rarely but that they change with more can get you can possibly win in this case the question is w if he's presented an invalid claim about actual essence there is a delay of ten months none of the cox factors have been met here and so the ultimate result that the district court ought to was cracked on him for that reason there's no need for and here you think we should be analyzing at this time the villany of the claim of actual innocence yet and i think that this court decision and cox is actually instructive in that sense because the court in cox said that if the martinez claim that is the gateway to open sixty relief is insubstantial the analysis can essentially end there and similarly if that mccuaig an actual innocence claim  this wasn't the person doesn't look anything like him in fact i can tell you it's not the person who could be hostile be more critical than that and that the attorney didn't follow up at all i think it's important to actually but that's true however he is a light skinned black person with brown hair and as the trial court found in assessing the credibility of these witnesses they didn't have a great opportunity to actually see the assailant as he was running it was from a half block away it was in the dark it was very quickly it was only from the side these witnesses that they were they were observing for more than just a few seconds right perhaps no longer than thirty seconds a minute i'm not sure about exactly in the record there might be some conflicting testimony but it was very quickly he he was running they didn't actually get a good look at him and i think it's important to remember here that the trial court judge heard th commonwealth housen only heard the testimony of weighing at weights and compared that with potassium only of the freeman brothers and said that based on their opportunity to view their descriptions of the assailant actually didn't rule out the possibility that it ineffective assistance to be considered cop so that that's a possibility it's a case by case analysis and i think on the stocks we just don't have in a sense the change in a lot of the even apply facts could there be a case where a petitioner did present evidence of actual innocence that would warrant sixty relief perhaps but this isn't back east and this case isn't the vehicle to decide that and again i just want to emphasize decisions at the same time you got to weigh that against actual innocence i'll concede there is certainly a lot of evidence against mr satterfield in terms of this case factors lead us to believe that the court should have a redo of whether the gateway has been gone through adequately been awarded for the court supreme court has made clear and i just want to empathize what that standard is it's that it's more likely than not that all twelve jurors would convict on the basis of the petitioners evidence and what we have here is not only the satterfield confession to weren't in the search warrant and we had would help but have no way to know that powder kill shot him three times that third shot is what path of action down and that the last shot was at close range when he was shot in the head we also have interesting to note that a klingon changed his testimony three years later and says he saw a car the trial court heard all this evidence and found their testimony to be simply incredible it's not just about their opportunity to view which was extremely limited in this case t can't see on the basis of a court record thirty years later well the jury did hear evidence that eric freeman had been witness to describe your sound as a white person with blond hair and given the fact that mr satterfield skin color is closer to a white person than an african american person and the circumstances of the identification were dark and from happened block away and happened very quickly as the quick sad none of that evidence actually proves anything whatever remember because the district court did not conduct the totality of the circumstances analysis that is required in a sixty analysis things would come into play as invited but this is exactly what happened in cox the district court sort of just determined that medicaid constitutional claims are all the time and third i think it's important to talk about the actual innocence standard in and of itself it is true that it is a stringent burden higher than the stric this respect shown by the victim toward mr satterfield prior to the incident here yes circumstantial but it's a lot of it there i would disappear on a respectful with a characterization of a lot there is certainly sufficient evidence to have supported the conviction but this is not this efficiency of the evidence test it is whether it is a rightly that a reasonable juror that any reasonable juror would have a reasonable doubt and again i would just ask the court to correct on ok and i would ask the court to look at the facts of house mr house goes for a walk at ten thirty pm around the time that the victim in that case is killed he comes back to his house some time later without a shirt on sweating panting heavily no shoes he's got the victim's blood on his pants and he lies to the police telling them but he actually had an alibi for the time when this kronk place when in fact he had no alibi he was out for this  so all of those things continue to be true the only thing out of the things that i mentioned that was even challenge at all was whether the blood was potentially spilled by the lab technician after the fact but even that was not a