good morning your honors may please the court deputy federal public defender jonathan ammon off of on behalf of the petitioner appellant and also the move and in this case holland's tis now your honour's a few things to discuss this morning i would like to begin with the certified procedural default issue procedural default in the first instance only after the state raises this affirmative defense does the burden shift to the petitioner to establish the that put the procedural default at issue and then the ultimate burden shifts back to the state to establish that it is in fact adequate and independent to bar relief in this case the procedural bar at issue did not come up until the magistrate judge issued its report recommendation i've objected at that time to that procedural bar being levied against mr tibbs no and only then did the state raise that procedural bar in its response to my objections which was literally the last pleading filed in the district court so you're objection here is that the judge s bar you have any authority that suggests that that was improper or an abuse of discretion yes your honor is that so i would cite the court to avoid versus thompson where this court found that it was appropriate for the  district court to raise the bar but at the point that at that point a district court had raised it pretty answer and they spoke to three factors to determine whether it was appropriate for the district court to sue a sponte raised the bar  those three factors were whether the bar was obvious from the face of the petition which in this case i would argue it certainly was not as it didn't come up for the first time until three years into this litigation when with respect counsel i thought that  your client conceded from his opposition in motion to dismiss that his claims were barred due to california's procedural rules regarding peace deal presentation of claims and in addition the magistrate published the honor i would say he didn't adequately have an opportunity to respond in the first instance with respect to your first point i want to be really clear that mr tibbs no conceded the procedural bars only to the extent and support of his argument that exhaustion was futile  in he had filed a pro se petition which was on exhausted and when the a g filed a motion to dismiss he offered to concede the procedural bars to move on with the case and it isn't that the same issue i don't think it is your honor because again the bar was not at issue and the attorney general rejected that offer as premature and speculative the again and what we offer to concede to was timeliness and the successive are now tim ss was not invoked that's not the bar that the california supreme court invoked the buy that they did invoke was repetitious or piecemeal now but the repetitious bar is not adequate and independent to bar relief that's why this issue needed to be brief below because the district court just sort of summarily found that these claims were procedurally defaulted as either repetitious or piecemeal but to the extent that the repetitious bar was invoked that's not a valid procedural default and there is supreme court authority on maker going back to the factors of the court looks at when when considering whether it district judges validly raise this issue in addition to whether it's obvious from well as part of the first factor whether it's obvious from the face of the petition refer the was inappropriate for the district court to sue with want to raise the bar because the bar was not obvious from the face of the petition and specifically they were talking about the same bar invoked here whether the claims that issue should have been raised earlier and this court found that it was not obvious from the face of the petition because you had to look back through when the claims had been raised with respect to the second factor that factors whether whether she was twenty raising the  interests of comedy federalism and judicial efficiency the thing court looks to reasons why the state had not previously raised the bar i don't see any real justification why the state did not raise the appropriate bar in this case there are no extraordinary circumstances no reason why that wasn't raised earlier and this litigated when it should have been litigated to say it is argued when the let's say you're right about the bar you still have to get around the schlump issue right if you're not necessarily of love is right if you  can prove then you know the worry about the bar if you can't prove you've got a problem right not necessarily your honor if the court finds that the bar is waived you can send me back down to district court for america terminations on the case and if you and we have a very viable brady claim which i would like to discuss of the court filing so speaking to our motion to remain and we discovered after i filed the opening brief in this case that the lead wilson case which was tried eight years before mr tis knows case we learned that detective marks had influenced and identification by a teenaged female witness the same is the same type of witness is what we have in this case he then concealed that identify the fact that he had influence that that identification which contradicts his deposition testimony in this case he then made payments to that witness and then failed to disclose those payments he was personally responsible for disclosing those materials to the defense and it seems that he deliberately did not know was the case eight years previous eight years previous to mr tis no trial so all of that material should have been made known to mr tis no especially considering how shaky the and that's the position that both parties have taken in this case there is case law saying it's the no vote but there's also i believe that stewart versus kate that expressed a little bit of doubt as to whether to know if it was the appropriate standard  speaking just further to the motion to remind this information about detective marks was incredibly important to the defense in this case because what ultimately the defense could not establish a trial is why the eyewitness would have falsely implicated mr tibbs now in this crime and what we need with respect i get your point that you aren't you know this guy is from your perspective he has a record of doing things in a way that you think is somewhat relevant to this case but in this case when we review when we look at review the the witness and her changed testimony the judge had to determine whether it was unreliable and not credible right that's the standard know nothing to do with the case eight years before with the other council and that's that's why my motion to remount is actually is separate from the shlep showing i believe the case should be reminded to allow me to work then to break claim into the answer judge smith's question about if this court decides that the procedural default issue doesn't apply the the remedy isn't that gets to have his claims heard on the merits because we're still dealing with a statute of limitations issue here and therefore even if this court finds that the state didn't meet their burden no procedural default applies no cannot overcome he cannot meet the standard to being applied to his case which here was the piecemeal bar it was never the repetitious fire the only type of procedural bar that has done has tried to rebut the adequacy of in this case whether it was in the district were or here is the repetitious bar and we've never invoked the repetitious part or hans the magistrate judge and that is because the repetitious bar only applies to claims that were previously raised in the california supreme court and the whole point of tis no returning to the california supreme court was to honor and let me explain why clarke we cited to clark we cited to this specific pinpoint cites that the california supreme court imposed here and we called it a time when aspire and that's not incorrect because clark is a case about being untimely here which was piecemeal we've always identified the correct pages in our citation to clarke and even with our certain to walker versus martin that case discusses clarke and untimely and us but for the same reasons that walk found the time when aspire is independent and not acquit the piecemeal bar is also independent independent and adequate for those same reasons even if this court finds that the only addressed the repetitious part so because he failed to meet his burden under bennett it was appropriate for the district court to find its claims procedurally defaulted misfires the actual innocence issue  judge questions and asked what the standard of review was for an actual innocence claim it does do novo however factual findings are reviewed for clear error we had an evidentiary hearing here and the magistrate judge was able to observe the demeanor of the witnesses and specifically the witness at issue here the star witness of the actual innocence claim that has now put forth bianca loci and found her to be utterly without any credibility and because it has no has conceded that that witness is incredible he the actual innocence inquiry fails and he can't meet the demanding substandard presenting new reliable and credible evidence of actual the hearing in the underlying i was part of the discovery i was not present at the hearing but my i read the transcript i know our arguments are you think the judge found this witness to be lacking in credibility well because she defender there was her deposition that we took there was her testimony in court and she just kept changing her story and so based on inconsistency isn't her story her a logical explanation for identifying the wrong person even though she was given for finding that support the magistrate judge just finding that that's when that's what was utterly without credibility putting that aside tis now is conceded that this witness is not credible so a witness can't a petitioner can't come forward with a and then say it's unreliable and therefore you can never trust what this witness ever said that's not the sleep standard it turns out on its head and because he can't meet that standard it was appropriate for the district court to find that he failed to make a credible showing of actual innocence to overcome both the statute of limitations and the procedural things in order to find differently we have to find what clear error that's crafter on our so if we don't fight fair then there's no schlump benefit which means you don't get the gateway to get a new start loki i'm sorry a photo of his no two loci that was known at his notes trial so now he argues that evidence that marks pointed out a photograph of a defendant to witness in another case would have undermined loki's idea of test  very much counsel we have a little rebuttal  time this this petition wasn't untimely the district court has made no finding that this was untimely in fact the district court finding was the record becomingly before the court is not sufficient for the court to make a determination of when the statute of limitations when the limitation period commenced procedural default is waived you can send us back to the district court the district court can hold a hearing on whether we're timely what's your best authority that the magistrate judge or for that matter a district judge has no authority sue a spontaneous to do what the  judge did in this case that is to bring this up and then deny any relief i think vang versus nevada the boy case i think those those are the two best cases i can offer and even day versus mcdonough where the supreme court granted is talking about raising the federal statute limitations to respond to it talks very specifically to raising it early in the case not in the report and recommendation just a few other quick points the district court was actually quite clear and its ruling that it was not finding that the california supreme court invoked a time and as our expressly stated that it disagreed with the state that it was invoking a timely this bar she agrees my colleague has pointed out then are we individually as three judges in a position then to determine whether or not in the interest of federalism comedy in judicial efficiency that it should be denied spontaneous at our level as well yes you can do that looking at the other two factors as well but of course yes and then finally with respect to the actual innocence showing with respect to the motion to read and this is the same cases as goes where this court reminded on of finding that new brady material about the lead police officer in the case from a separate case warranted sending the case back to district court and allowing the petitioner to at least give th petitioner the opportunity to amend his petition with a new break time is up but thank you very much for your argument any other questions by my colleagues no thanks to both counsel your argument in the cage the case just argued is submitted