good morning and may it please the court my name is christina hellman and i represent the petitioner donovan fortan i see that i have about two minutes of my time pretty reserved for a battle today when mr ford ten learned of new evidence in the middle of his corpus case that suggested prosecutorial misconduct and his actual innocence he did what the law requires and what everyone wants petitioners to do he stayed the federal case and he returned to state court to give the oregon courts the first opportunity to hear those claims unfortunately for mr fortan this time following the rules did not help him at the conclusion of all of the proceedings in state court the state court unexpectedly found that actual innocence it's not enough for a successful claim not that such a claim doesn't exist in the abstract but that he doesn't have a valid claim and it's just plainly not true that there's no so not the actual innocence claim right ok so then your honor i think that yes we do read the record differently because as i read it one the state court said wouldn't be a basis for p c r even if proven or let's assume for  make it clear your client did have a remedy under state law so even if the court was mistaken your client had the remedy how do you respond to that i would go back to something that usually hurts petitioners and that's the fact that in this particular case the receiving it's true that they said he doesn't have a remedy and it's not the province of a federal court to revisit questions of oregon state law and so even if this particular post conviction court has ruled all the time people asked to do that all the time and to the degree they interfere with constitutional rights that is our province and in this particular case your client is saying that he was denied a federal constitutional right because he was denied a post conviction proceeding under state law we then look at oregon state law both case law and statutory law and it says exactly the opposite the way you construe what the court said and even if you look at what the court said it can be construed in the broader context that looking at these facts there is no remedy it doesn't necessarily mean that there was no right to post conviction hearing in that correct no your honor i respectfully disagree and i think it's because we read the record very differently and because i do believe that even even when state courts are clearly wrong as tourists would find them under state law the federal court does not in federal that ruling on state law however i if we are if we are going to have this disagreement then i would move on to two other points i do because that paragraph starts by saying there's no proof of prosecutorial misconduct so the court looked at it on the merits and found against you and we deference to that fine news well and so the primary holder of the state court were means there was no proof of prosecutorial misconduct in the first place so i guess i just don't see how you get past that first sentence of the paragraph where it says i've looked at this on the merits and there are no to reject my position that in this case you're required to defer to even though it's an erroneous fact finding here are legal conclusion excuse me then the position remains my position remains the same that i really struggle with this because the course under sloppy have to show that there's no base and more likely than not that there would be no reasonable juror that we convict your client given the facts of this case and given the rather meag  new evidence that you put in all of which was known before how can you make the statement that there's no way that a reasonable juror could have convicted him  arguable slop gateway we have conflicting statements by s d we have evidence and the record that supports the idea that she did recant for a legitimate reason not true the reality is each thing that's proffered is itself contradicted by something else on the record much of this perhaps all of it was already know this is not new evidence and my judgment and but even if you take that all into account the fact is i i just don't see how you bear the burden to show that no no not a single juror would convict your client i mean this is it's basically like in about why the recantation was made and why it was retracted and that kind of goes to the last point that i would like to wrap up before i do reserve about a minute is that because going back to our first point because the state court said that actual in the courtroom and judge their demeanor second it would offer the opportunity for cross examination which never occurred because of in the depositions as an opportunity to cross examine and third it would offer an opportunity for  i please the court roll phone from the organ department of justice this court should affirm in part the district court ruled correctly by concluding that procedural default principles precluded it from addressing the merits of petitioners misconduct claim even though the petitioner did present a different prosecutorial misconduct claim to the state post conviction court and even the oregon law nothing in our law either then or now would have prevented a state court from addressing the merits of such a claim petitioner did not present the claimant issue to the state courts counsel let me ask you this opposing counsel as stated several times that she believed these words but wouldn't be a basis for p c s even if proven somehow is the statement of law by the court in that we can't review it and it binds the court would you like to comment on that sure i disagree with opposing counsel's view both of the meaning of the statement in terms of what the post conviction court's intent was also disagree with the proposition that if that constituted a statement about the availability of post conviction relief or a claim like that that would be binding on this court let me first talk about what seems to me the much more likely meaning behind the statement the petitioner is relying on at your thirty two in the state court findings it never made a blanket declaration that prosecutorial misconduct cannot be the basis for post conviction relief in oregon instead it first stated that  no proof that the prosecutor tried to get the victim to change her story or add anything untrue at trial then said but wouldn't be a basis for p c r even if proven i think in context that means that even if the petitioner had proved it that the prosecutor tried to influence the victim's testimony petitioner then failed to prove that the victim ultimately gave perjured testimony at the criminal trial that is you see it as i'm referring to the immediately preceding sentence as if it were attached to the preceding sentence is correct and if you look later at the r thirty two what the post conviction court also said was that petitioner quote petitioner has proven inconsistent statements but not perjury unquote which supports the conclusion that the post conviction court overall was saying that even if the prosecutor had improperly tried to influence the victim's testimony there's no proof that that had any effect on the victim's ultimate testimony at the criminal trial i read the same way but let's take for a moment the statement by opposing counsel if i understood her correctly she said that if if what i read a minute ago from the trial court was in fact the entire statement that somehow the ninth circuit court of appeal had no authority to examine what that trial court said about state law what's your response to that i think that think correct in my view and i think it might be different if if in fact the post lot of the trial court itself even if it were as counsel's suggested is there would be no that's not a final declaration of oregon law that we can't try to construe what was meant right correct correct i think the other important principle here is that at the time petitioner filed his post conviction petition there was certainly nothing in oregon law suggesting that the merits of a prosecutorial misconduct claim could not be addressed by a state post conviction court and so what petitioner needed to do was present this claim to the state post conviction court and if the post conviction trial court ruled that such a claim could not provide a basis for relief as a matter of state law petitioner then could have appealed to the organ court is not required though i mean when we look at the last reason state court decision do we require that and that it go up to the supreme court let's suppose the state goes can richen court said well you didn't get a jury trial but we don't have juries in oregon and for some reason there was no appeal are we back down by that is the last reasoned or even if one reasonable statement of law are going to be honest i'm not sure if you are not in the context of a claim that's actually presented to a state court right i understand that your main argument is he presented a different claim and so i would just you know it's not here for that reason i understand that but i guess i'm a little troubled by this idea that you have to go all the way to the supreme court of like it or not absolutely sure if that's if that's the rule when you are dealing with a claim that was squarely presented but certainly in a case in which you could have presented a claim but didn't and you're now trying to rely on a state court comment with respect to here could be construed under any circumstances as the in quotes last reasoned opinion of the state court certainly not given the factual context in which the post conviction court's statements were made and the claim of actual innocence and why in your view that's not an abuse of discretion that the shortest easiest answer to your honor is that even if an evidentiary hearing had been held and even if petitioner had presented the type of additional testimony or evidence that he's saying now he would like to present that wouldn't enable him to satisfy the actual innocence standard because at this point given what's already in the record otherwise  no matter what came out of an evidentiary hearing a reasonable juror looking at all of the information still could find petitioner guilty and that's because the record already contains evidence that the victim at the criminal trial testified the petitioner raped her twice forcibly contains her testimony at deposition in the post conviction case that her trial testimony was as accurate and was the truth the record already contains a reason that they are basis for a reasonable juror to rely on to context of slop who bears the burden to show whether a whether there would be no reasonable juror that would convict but i think the petitioner essentially bears the not been done in this case and even even additional information presented at an evidentiary hearing could not satisfy that burden here and petitioner has also pointed to the post conviction testimony of officer al but a reasonable juror could easily find that officer reales post conviction testimony was not as reliable as his criminal trial testimony officer l testified in the post conviction trial nearly a decade after the events at issue and there was some dispute about whether the victim had identified a particular date to him when she first talked to him before the criminal trial and of those conviction trial at best officer a ultimately admitted he simply wasn't certain at this point what had been said by the victim and what happened to eighty five he said i don't know if i did write down the wrong date or not at your two eighty six he said i'm not saying that date is right or wrong i'm saying i don't know so his post conviction trial testimony at best testimony he testified that he recalled that the victim had testified first of the criminal trial that the prosecutor then talked to him about his upcoming testimony and that he then testified at the criminal trial but he are three sixty two and three sixty three show that at the criminal trial it was actually officer reale who testified for and the victim testified after so in terms of his recall of the basic chronology of events he was flatly wrong when he testified at the post conviction trial and that's another reason that a reasonable juror could easily rails testimony of the criminal trial was the reliable version of events which was consistent with the victim's testimony implicating petitioner in his crimes and what if you will standard a review do we apply as a court of appeal when we were analyzing a schlump plain right i think presents a question of law whether the record shows more likely than not that no reasonable juror could find guilt you know what i'm saying is that do we do we take from your perspective do we take the entire record look at what was presented to the jury and say here's this alleged new evidence assuming for a moment that all of that is true do we believe that there would be no juror that would convict is that your understanding of our role well certainly this court looks not just at the evidence presented a criminal trial but it's all the information we have now in the record at the same t doesn't assume that any of particular information is true simply looks exactly and explore the parameters but i but i think everything in the record at this point is is fair game for the actual innocence analysis thank you counsel thank you  anything about whether there was a post conviction if you will avenue of appeal that was available to mr ford and they said nothing the organ court of appeals affirmed without opinion and the organ supreme court my final point was that in terms of considering an evidentiary hearing when the petitioner has not been given a full and fair opportunity and state court the last states that he is entitled to an evidentiary hearing in federal court if he proffers a opportunity because there wasn't the same situation in this case where the state court had said categorically on the actual innocence issue that's not a basis for relief and pain holster he had an opportunity for the state court to have granted him relief he done what he was supposed to do and presented all that evidence and so even though it was an eye yes and the law is developing still in this area but the question of whether you can have the evidence