minutes or rebuttal i wrote your part that's great guy mr parr ham has assembled over the course of contemporary years a large strong web of circumstantial and now physical evidence that he is actually innocent and it would be a manifest injustice not to allow mr parr ham to have this opportunity to litigate his claim of actual innocence as well as his cl g i and six circuit six seven the fed third six sixty five decided march first two thousand and twelve has addressed a number of the questions that the court also pos because mr parr hamis pointed to a number of procedural irregularities in the initial decision making first of all he's pointed to the issue that the there was an extraordinary breakdown in the administrative process and although the commonwealth argues that mr parr him is raising this for the first time an appeal that is not accurate the first of all the first order which which was issued restoring mr parr ham restored counsel was going to be appointed new counsel was going to be appointed and that counsel had thirty days after the appointment in which to file the appeal so mr parr ham was never required to do anything under that word or mr parr ham also pointed to a breakdown in court operations in his objection to the  magistrate's report and recommendation that was directed at his two thousand and five twenty two fifty four petition he presented the argument at a sixty for the quote the breakdown in court operations resulting in attorney cottrell's continued appointment conflicted by new employment and petitioners extreme diligence and lack of any remedial option created a situation appropriate for tolling next the commonwealth claimed again specifically pointing to a application for leave to file a second or successive act petition that was directed to the court of appeals that mr parr ham never raised this issue however in the supplemental appendix of page two paragraph five  petitioner this is a pro se petition it's supposed to be reviewed to identify the strongest issues in addition there and that was not done for mr parr ham nothing i'm not sure what you evidence that was exculpatory in deciding whether or not mr parr ham had made out an actual innocence claim he the court did not do that the court instead focused on whether or not get past the sixty the two time constraint even if you argue it's a sixty six you have hurdles there all of those before you actually argue the merits of the actual assault in other wacks in the third circuit i believe we've cited the case in our brief this circuit has found that a roll sixty b motion is addressed to procedural errors is not a or successive twenty to fifty four petition so what are for what we are doing in our sixty being motion is pointing the court to the procedural errors that were made in the citing the twenty to fifty for the first time that it is not a second successive twenty to fifty four is availing himself of the opportunity under rule so to be or an independent action to ask the court to look at the prestigious that used in deciding the matter the first time  piece of evidence in this case the hole that mr parr him finally plugged in all of the arguments against why his proof that he was working in virginia at the time this murder was committed was of no value because he had never proved at the exact time that the night the murder i'm sorry the assault on the cab driver was committed that at that exact time he could not have been in philadelphia so now in two thousand and ten on his own initiative he has persuaded mcgann corporation in virginia to go through their ten year old employment records pull out the evidence of his time cards the time that he was that's me i mean that's the only thing the description of the man is different the age of the man is different you know i you are saying we are going through the merits of actual innocence but if we move through that i find the claim of morning and this cab driver was shot in philadelphia at seven twenty or so on the back of the time cart has the hours that he was working her way to the back to food the usual out of the court i don't think it's hard getting an evidentiary hearing and also i think the letter that accompanied it from the corporation was explaining their own pay were payable records so that's the evidence that dylan mcnair was at work in the shipyard at seven am the distances between the two cities is two hundred seventy one miles give or take a few miles and the time difference is one hour and forty minute appendix from dylan mcnair's mother dylan mcnair was a five year old boy who met mr parr ham in for chinua allowed mr parr hand to use the name in the social security number of her five year old son he obviously was not going to be applying for jobs using a five year old's birth date because he couldn't get a job in a shipyard so he was also on the lam from the law ok so we're supposed to believe that the of mcmahon magen corporation that shows dylan or worked seven to three thirty for that week of employment at the testimony for from the homicide trial where mr parr him was found guilty of third degree this occurred prior to the cabdriver assault former f b i agent martin hoolahan was called by the commonwealth he said he received in from he was looking for mr parr ham for the homicide case he received appellants appendix a one twenty four through a one thirty three so far he said i would show the photo and they would state that the individual is doing mcnair or someone who represented himself to be dylan mcnair but the people who i same injury there was a testimony if the trial of the assault on the cab driver from abdul being a mom of the mosque where mr parr him worshiped in that location of virginia who knew him as construction company she dropped by his apartment at nine seventy four maryada that's the in evidence and against at the commonwealth says well he was two different birthdate ok mr parr him testify that his trial innocence which is more drop wanted you to speak to i mean the standard that we have to apply is it's more likely than not that no reasonable jury could find him guilty based on what you put questions asked by this court in the in the certificate of appeal ability grant as i understand it there are really two main questions themes posed by the court one of which is whether a showing of actual innocence told the vs deadline and what the content of that standard is and then question number two is if there is such a thing as an actual innocence tolling for the pages deadline how does a petitioner present such an argument after his first petition has been denied and one of the requirements we have very quickly for general answers to those two questions number one we don't have to reach these questions because mr parm is not demonstrated that he is innocent by the necessary schlub standard number two with respect to the hey vs deadline they gave you statute already allows new factual claims to be presented and the presentation of old fa claims runs against the language of the statute and also runs against a very nature of a session limitations point number three even if there is an exception to the statute for old evidence sixty they must be brought under rule sixty two which is the only provision of rule sixty that specifically deals with evidence not before the trial court and which contains a requirement that the evidence be new  that the claimant be reasonably diligent and sets an outside window of one year obviously there are a lot of things to cover i'm not going to talk much unless asked by the court about t main issues first the actual innocence the question of whether there's an actual innocence exception to behavior as time bar in ultimately this is a question of statutory interpretation because in twenty two forty four d congress already provided for claims involving new new evidence and set a reasonable diligence standard and to trigger a restart of deadlines when actually technically it's not a tolling provision in twenty two forty  forty it's really retriggering because it put a provision one thing i didn't really do in my brief and probably i should have done more is talk about holland versus florida the supreme court said in holland that the hadiths deadline is subject to equitable tone but it said a few things that i think are directly relevant to whether evidence of actual innocence can toll the deadline number one holland focused on what we would think is garden variety towing events you know and pediment defiling like in abandonment by council or or something like that the supreme court said this kind of garden variety equable tolling statutory deadline that i know of that you can overcome a statutory deadline by offering evidence to re evaluate the ultimate question that is the guilt in this case the guilt of the defendant and number two the statute is not silent on like what holland was looking at the statute here specifically allows for claims of new evidence so long as the petitioner has been diligent and comes to court within a year and the other thing i'd say about hallen is that all right well let me give you a hypothetical we have d n a that we have a a much more specific factor pointing that you don't actually need as much evidence gathered that there's a super duper new d n a test that is developed and that a person who was convicted and incarcerated and years ago then determines under the new d n a test that he is innocent that someone else committed the crime are you saying that person has no remedy not necessarily it would depend on a couple of things first of all it would depend on how new the test is forty one year i mean it's well it's one year from the discovery we have it is evidence ok yeah or where the evidence could have been discovered right and in addition i would say in a situation like that that states including pennsylvania do have their own most now or have had an active d n a statutes and some are considering in acting various types of actual innocence statutes so a d n a question would be first presented generally to the state courts the other thing i would say about  about and holland says look by comparison at the triggering events which are discussed specifically in the statute well the triggering events one of them is new evidence so by making the discovery of new evidence of the presentation of new evidence a triggering event again the ultimate point behavior statute is not silent about this kind of a claim in this i think it titian i think it does your honor if it's true the good solace said statute of limitation questions generally fall under sixty but again in incans all as the court was looking at sort of garden a garden variety sixty argument what we're dealing with here is not primarily an attack on the integrity of the federal proceeding which for example you know an impediment to filing or something like that is this is a request surreality gait the very basis for the criminal judgment which is the guilt of the prisoner so i would say generally what  us license to do is to say what's the substance of this type of claim does it go to the heart of the criminal judgment is it is it does it go to the heart of the matter or is it an attack a collateral tack on the integrity of the proceeding and i think generally claims of actual innocence are the former the other thing i'd say is that in this case mr parm raises claims a he raises a claim of straightforward actual failing to subpoena the various pieces of evidence we're talking about today the claims here sometimes you have a problem might theoretically have a problem connecting our gains of innocence to specific claims like the response of argument might be it's not really a claim it really is it does go to the statue of limitations it's your your allegation of actual innocence but in this case the allegation specifically go to two of those claims so that by that even the most strict technical interpretation of twenty to forty four  this is evidence presented in support of a claim and because of that the one year deadline clearly applies and the exceptions to it clearly should apply  i would just also say about the the diligence requirement in general that every avenue for the presentation of of the instance question has a requirement that that the evidence be new in the sense that your petition has to demonstrate some sort of diligence the standards governing equitable tolling that the supreme court talked about in holland and the third circuit's this court's precedents interpretating ineffective assistance of counsel and shouldn't mr parm have another chance to bring this evidence before the court that would have gone before if his trial attorney had done it right well a couple of things that that the ineffectiveness standard includes is it your honour's office where the a prejudice requirement and so even if we said council had no reason that apparent from the record for not doing something if when we look at the evidence that he was wanted to introduce and we think it's not much more convincing that what he already introduced it wouldn't be an in effect i also say though that so that the evidence at that point was not was not what was later resent it was not all of what was later president presented we have at trial what was presented was some of the work records from the mcgann corporation in norfolk not the index card which is the most recent piece of information but the that kind of computer printout was introduced was attempted to be introduced as your honour's correct at tr was excluded as hearsay that the thing is that piece of evidence doesn't help much because it doesn't give the hours and that's what the court justice greenspan i believe was it was the trial court judge no said this doesn't establish what hour he would have been in norfolk on that day anyway also that the record is replete with references  defense counsel to his inquiries in virginia that he tried to talk to people and nobody recognized this guy and i don't mean no but none of his friends recognized this guy they did claim that you know your honor is raising or or discussing it's clear from the record that there was a you know a reasonable reason not to pursue that if he's on the phone or i'm not sure exactly what the  what steps he took he might have gone down might have had an investigator going on actually as i'm saying it now i think he did have an investigator go down and talk to people no one at the corporation recognized this picture so it's some point it's reasonable for counsel to focus his fire elsewhere and if the evidence before this court now were extremely convincing then maybe we could second guess what counsel did or didn't do but it's clear it's not that convincing in fact i don't think it's convincing at all raises questions even if i presume even if we have that's evidence in the world you know nuns you know we fathers and whatever and documents they all were lined  sixty is a is the appropriate vehicle for this yes i'm saying that there's no actual innocence exception to the hague just deadline and i think that that doesn't mean that  the thank you for closer hey b s remedy based on old evidence may be troubling in a hypothetical case but it's a line that congress can draw both because the  reliability of evidence decreases as time goes on both because the state's interest in finale increases as time goes on and because in the real world there are other things that a defendant can do there that the commutation process now i'm not saying it's common but the supreme court in herrera versus collins which is the case in which the courts are there's no such thing as a free standing claim of innocence and hey vs it was very important to the supreme court that ultimately those types of claims and i see my time is up if i can dismiss my thought alternately those types of claims once everything is over can go to the governor that that's a constitutional structure it's constitutional architecture for this kind s was never meant to be the place where guilt or innocence was decided it's supposed to be a limited review and now it deferential review of what happened in state court qualify but state statutes have have d n a exceptions so we're only talking about evidence it struck ace's where you would have all the evidence that was supposedly proves the guilt of the defendant but apparently not to the extent that the prosecutor or the governor is moved that's a big it's a situation that is not likely to occur at least very often i have certainly haven't seen it but but it's difficult i think to interpret all the statutes based on that kind of hypothetical when i think the congress was pretty clear that if you want to make an argument based on evidence it it has to be new evidence or you have to have to  i do want to point out to the court that the letter from mcgann corporation that finally produced the time card that document was filed within one year of the date it was received was filed this part of th he pursued his rights diligently the has been soundly rejected by mcquinn and the rejection is based on house versus bell it's a based on a historical review of hate be a statute where there was always equity in haiti as the courts have always been invested with equitable powers and as the court pointed out very simply if there was no equitable tolling except with due diligence there would never be any equity bell tolling because the person has been duly diligent doesn't need equitable towing so there must be some other element known as equitable towing that is separate and apart from the exercise due diligence or any statute of limitations what about judge roberts hypothetical if you come up with superduper the day that shows x and then you don't present it for five saying is not where there is a claim of actual innocence it does not apply it just does not apply it says and perkins all credible actual innocent planes are to be traded the same whether you're looking at the one you're at that's provided in some of the statue of limitations the way it says no you treat them all the same the congress included file with one in within one year does not require or nor is it mandated the court immediately toss that petition the court is required to look to see if there were equitable reasons so everything the commonwealth has argued today which the court directed us to in our filings as to whether or not people at the plant recognize mr parr ham he worked there for one week ten years before this trial took place that what was important if there was going to be an alibi for defense counsel to get the records which he didn't get this defense counsel with this case that we're here about now also represented mr karr him in the homicide trial he heard the f b i agent testify at the homicide trial he questioned the f b i agent he knew the f b i agent was retired and working for an attorney and for ginia but the attorney for mr parr ham did not subpoena him to come and testify to establish wouldn't let the transcript come in so to pretend that the commonwealth is interested in mr parr ham getting any leniency down the road this is the this is the court to make that statistic presented to me recently that the united states has five percent of the world's population it has twenty five percent of the world's prison population do we also want to be a country where our statutes are interpreted and require the courts continue to incarcerate people that they have reason to believe are innocent to willfully continue to incarcerate people because they didn't meet some deadline the cases that are coming down are saying there