good morning may place the court i made an inexcusable mistake in the district court because i believe that i had ten business days plus three days to file my motion to  discretion standard nonetheless i don't believe that my client has to spend the rest of his life in prison because of my mistake i hope to persuade you in my graves and today arguments he made before the district court's order denying the reality well this isn't true because the district court in its order came up with reasons for denying the writ which the state had never made and consequently misconduct issue to the state court of appeal did the state court address it not address it i think the district court said it was silent on that issue that christian to it was in your papers to the state statement in closing argument that the non testifying witness told the police officer that she saw she saw british and stamp the deceased in the corporal of the state's only argument was that this that if there was an error it was in any event harmless because the proof of guilt was overwhelming well the district court below didn't find the evidence of guilt to be overwhelming instead it came up with a different prejudice argument or analysis namely that they didn't think it was likely that the prosecutor's mischaracterization would have affected the outcome of the trial because the jury was instructed that argument is not evidence and because the jury asked for it read back of the police officer testimony that's what i addressed in the in the role fifty nine motion for reconsideration because i thought the timely what's the difference in standard for us well i'm not sure i can really articulate it and the coon case the supreme court said that  in abusing discretion standard it does not mean that a mistake of law is beyond appellate correction a district court by definition abuses his discretion when it makes an error of war the view you have used to discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions i believe that and in denying the motion for reconsideration the corporal was guided by wrong legal conclusions and that the court had been clearly erroneous when it's in either writ in the first instance i actually thought that it was also on the on a fast injustice but unlike you know i think we can focus more on whether whether that decision was clearly or erroneous and i believe that's the standard that makes a little bit different than if i had been timely and  before the the court below in other words it had the ability for you know consideration of the issues because there was no state court read reasoning issue that's correct but i think in reviewing course this court has the same record to review that the district court below had and i think that in reviewing that entire record in light of the misconduct that appears in that record that it reached in and erroneous conclusion earlier on his conclusion that there was no harm to my clients argument you know he wanted to raise in the first place and let me explain to you really my problem with that argument and seems to me that the argument is premised upon accepting the truth of the sentence that you've picked out of the police investigation report that is these statements by the detective that they've given witness something it's potter did not see defendant stab mcwhirter but there is no reason that we have to or any court has to accept that statement as truth that is simply a statement that appears in investigative report which could be used to cross examine the detective but isn't something that's that's gospel something that's handed down from heaven as is necessarily so and all of your argument depends upon the alleged falsity of the testimony of the alleged misconduct of the prosecutor is premised upon the notion that statement must be true but what tells us that statement must be true why can't the prosecutor fairly rely upon what the detective actually testifies to a trial and draw what inferences might be drawn from that well false that now could be wrong could be lots of explanations or lots of things in a written material that turned out not to be the case your whole argument is premised on that statement being true yet that wasn't proven a trial so why is that we have to accept as a premise that that statement is literally the truth well i think that's the only evidence that we have on the truth or falsity of that particular source the prosecutor and possibly  that all sorts of documents and pick out any statement after the trial and say well the testimony at trial was inconsistent with that statement and so as a result there's misconduct i don't think a single trial survives because there's always inconsistency in the record so in law she can give you some other reason for why we have to accept that statement is the truth and everything else that's not consistent with that statement as inherently false and deliberately false i just don't know where your argument goes well you honor i don't believe i can embellish my argument on that point greatly but if that is the crucial issue then the court below should have never an injury hearing on that particular question to  find out maybe by calling betsy potter and sergeant that the court's job instead of the defense task a trial well i would think that if the if the state had evidence to suggest that there might be some explanation for the officer saying that she didn't say x when she actually said x that the state would have at least presented that evidence in some if there was any evidence that there was some explanation for it some innocent explanation for the state couldn't come forward with that or the qwirkle of it if it thought there was some ambiguity that could be explained should have had no evidence for hearing the words my client should spend the rest of his life in prison because the prosecutor testifies to the fact that probably isn't true in my mind certainly untrue because it's direct directly contradicts the officer's notes made fairly contemporaneous contemporaneously with the interrogation in this case i know you are over time but the jury so when the district court stand down this thing once properly had determined and that the jury was probably not misled and how can we say that that's clearly about these hearsay statements that came into the trial based on his investigation it became clear to him in other words he believed their books they have joe and then we heard through sergeant cruz that the whole reason he went back to interview irene is because bessie followed routes he should have followed her and then so this whole thing is really turning out to be an explanation of the investigation which is why it comes around to focus on what sergeant cruz does so much damage but the problem is that it by testifying what with betsy potter said out of court prosecutor can't be cross examined also in saying that it wasn't likely that the prosecutor statement misled the jury or could have affected the jury the court below doesn't talk about the all that all the other instances of prejudice i mean this was a retrial the jury hung on these facts in fact betsy potter testified at the first trial so when she testified in person the jury hung when the prosecutor and crews get to testify on her hands and she can't be cross no and i would add two points in response to this year's argument defense counsel never objected to the prosecutor's argument in this case so defense counsel also declined a limiting instruction as to sergeant cruz's testimony i declined it immediately and then when there was jury read back ask the judge for the instruction and the judge said no at that point i'm not going to instruct on something i've already denied so the fact and defense counsel never impeached sergeant cruz with his police report which as you've noted your honor was it was a police report that there's nothing it was unsworn and it was based on what he took away from the interviews he had with that potter and bessie potter and i believe that he explained that on the defense attorney's cross examination of him he explained why he had come to the conclusions he came to about or her witnessing of the crime or her recollections of what had happened the district court found that the state courts denial was not an unreasonable application was not contrary to or and reasonable application of federal law a motion to amend argue that was clearly erroneous the motion to amanda or alter didn't raise anything you just argued it was clearly erroneous and rehashed the argument that had made in the original memorandum of points and authorities in support of the the district court denied that noted that it was a rehash of the arguments and denied it i submit that that is not there is no abuse of discretion in that denial and there are no further questions i would submit it there are none like you it is just argued submitted and we all now move to