and the failings that he identifies resulted in the conviction of the first issue before this court is whether mr earle trial counsel's failure to investigate the medical evidence in this that in question he simply didn't have access to the medical records his trial counsel in fact when offered the medical evidence prior to trial told the prosecutor oh i don't need that you can bring that just bring that to the trial mr never had access to the medical evidence himself to actually present that question of the claim what he did do was speak to the child's treating physician and was told of the state physicians klein doings the result that you're asking us to reach the supreme court decided the rice case which was a ninth circuit beings just a few days ago discussing the same issue that we must give more deference to the contested at the procedures within the state court had been fair and simple that's absolutely not the case here first with respect to the medical evidence the reason they hand from the court of appeals to the trial court was very any investigation as to other possible perpetrators and moreover as set forth in our brief the remain and hearing was a farce the first a turning that the court appointed to represent mr nelson was moreover not only was mr romero very ill prepared for the hearing he didn't know the biological mother of the victim he didn't know that the rules of evidence would apply at the hearing he clearly was not prepared to present evidence at the hearing but moreover even the factual findings that did result from the hearings were clearly erroneous were obviously not based on what was presented the supreme court's opinion relying on the hearings from the record first of all the supreme court said that those findings were and challenge which certainly was not true the second is that they said that there was no evidence presented that the alleged victim referred to three years old at the time that's part of the reason she was unable to testify was she was simply too young and and unable to answer any any questions in any rational manner but that is so the time period particularly given the well your honors if you find that it was not properly presented to the state courts we would agree that it's procedurally defaulted and thus the only way for this court to reach the merits of that claim would be if there is a finding of miscarriage of justice if mr nelson can show that failure to review that claim would essentially result in the conviction of an innocent man and it's a very difficult standard it's a standard mr nelson can reach that's a standard mr nelson i s has already established based on the actual innocence actual innocence the state's case began and ended with that medical evidence that girl had never made any allegations of abuse there was a clear financial motive for her biological mother to bring those allegations once that girl was brought to the doctor dr frost and those false conclusions that she had been sexually abused were made it's set in motion a series of events that simply were never investigated and never challenged at trial this is really different than most actual innocence claims because it's not saying i didn't do it it's saying there wasn't a crime in the first justice argument and potentially that door opens to the medical evidence is that of the medical evidence offered up subsequently on behalf of of your client is accepted and there's not a crime and hence your client has to be guilty was molested but i'm saying it wasn't me i would say to what his letters that he wrote to mr earle and mr earle refused to meet with him prior to trial he wrote him a series of letters that we've included in the record saying i want to meet with  want to tell you witnesses who can tell the other possible perpetrators might be he was also saying please get an independent evaluation please look at this the girl's treating physician says your findings your medical conclusions of statements that the child had made after due to frost those findings the girl was taken and placed in a series of foster homes the foster parents were told to write down anything that seemed unusual or might suggest sent to a mental health counselor and again trying to elicit statements none of that you're saying would now be admitted in light of united states versus crawford but at the time under the law those statements were a also the state presenting some evidence that they suggested indicated that she had been sexually abused we stuck to a number of studies that show that mr all should have had a behavioral expert to combat the state's testimony because all of the things that they are starting to are more indicative of either a developmental delay or simply environmental instability temper tantrum sleeplessness nightmares obviously this young girl three years old goes to is taken to a doctor's appointment and never allowed to see her father again has already been taken away from her biological mother it's not would ask the court to remain and for an evidentiary hearing on that issue as as i believe the documentary evidence that we have submitted does meet that standard but i just i'm still trying to figure out what the supreme  petitioners own statements to the effect that somebody else couldn't have done it because he had such control or such a person who took such care of the child and is i understood the district court's determination  given mr nelson's very frank admissions that he kept very close tabs on this child it put the not a full evidence just about much more in the forefront that if mr earle his trial counsel is going to pursue a defense that someone else did it nelson and his family members have a number of individuals who were given and close contact with this were all privately atlas not only the biological mother who at various times the alleged victim did allegedly used her also a series of boyfriends and some of those boyfriends did have contact over a period of time access to the girl and it should have been argued that that there was sufficient time for those individuals to be responsible there were two of them at least two of them who were specifically named by the young child at various points as having been responsible  but again i say it just highlights all the more that mr erlich if you was going to pursue a defense only that someone else did it needed to investigate that medical evidence given mr nelson statements to the c p s workers the house versus well that may lead to some more insight but what is your sense as to what's left of the miscarriage of justice called the door argument at this point well considering the evidence it's more likely than not that a reasonable juror considering all of the evidence including new evidence with not vote to convict the petitioner and i think in this case certainly the new evidence would include the medical evidence it would also include all of the witness to us that mr nelson identified it would include behavioral experts to explain this young child's behavior and why it doesn't indicate sexual abuse given all of that evidence no reasonable juror would vote would make a finding the under reasonable doubt that he committed this crime or even that the crime necessarily occurred you can use can you satisfy the requirement you talked about we think there's life to that argument or should remanded law in factual predicate that could not have been discovered through the exercise of due diligence how is it we can get by after this limitation on on holding the evidence you're hearing you're out first of all  to this court it's not something that he would have been attempting to show in the state court moreover to the extent there has been state court factual development for the reasons i stated previously that the hearing was a farce but it remains hearing where he was given an attorney to speak for him who had a direct financial conflict and who was completely unprepared to represent or speak for mr nelson and prevented him from medical evidence claim and the responses he has not because mr nelson if he just told us the evidence was so overwhelming and now you're giving us a procedural defense i think it's not impossible th of drains my my faith in the sense that the evidence is so overwhelming here there's not a prejudicial problem well you're out of the evidence was so overwhelming in this particular case in part because of the admissions made by mr nelson himself to chief blackburn and to bruce thomas the c p s investigator he stated to those folks that he could understand how this child possibly could have been him molested because he supervised her so closely so just based upon that admission alone he's herself in pretty well only if there was a crime in the first place that's correct there are but corroborating that testimony was and this tony sort of understated this and i would urge this court to review the trial court record but there was numerous i do i think that the case was this court granted the ritz henry managed for a new trial back in the superior court much of this testimony about all of that since it was testimonial to crawford would not be admissible at this j there is no prejudice because the overwhelming nature of the state's case makes prejudice impossible for mr nelson to establish the witnesses testified the foster parent the daycare provider the preschool teacher the child therapist i provider testified that the victim would come up to her when there weren't any kids around and say quote my daddy hurt me and quote quote touching me there and quote her vagina and testified she observed the victim type two boys penises and that she saw the victim touch  for the weight of again what i would characterize as overwhelming evidence which demonstrates that mr nelson is anything but concluded ultimately that the record was sufficiently well developed for the court to render a decision on the heaviest petition and he ultimately concluded despite the fact as you said it he dealt with issues of law judge vance technical came down in this way at the end of his order he said the victim lived with mr nelson mr nelson strictly limited other persons access to her the victim was actually solved that the victim searching the sexual assault by daddy and she referred to mr nelson as daddy and this is ten he previously request of the u s district court to expand the record in this particular federal hate the suggestion that request was granted in part by the u s district court and a great deal of evidence was submitted to the u s district court based upon his tennis request to expand the record to have an evidentiary hearing would serve no purpose the information that mr nelson would wish to admit during an eviden court of appeal what would we do with the findings that have now been made by the district court how would we use them is there a way that we could come to a different conclusion if that means warranted nelson's conceded the fact of the crime having been committed actually got to consider twice before and he conceded that twice in the state court record i don't mean to interrupt the court of the court looks at fifty or sixty five and that's your one forth it doesn't look likely the district court weighed that because it concluded that the the concession or the the fault on that issue was sufficient to close the door to that question and so the district court judge vansickle as well as the magistrate judge put themselves back to the question of ok there was a crime committed who is the perpetrator you've got a defendant who's busy saying i've got such control over this child couldn't event nobody else so the additional evidence is going to make much difference if if we what i'm i'm raising with you is the district court doesn't seem to have made the determination that you're suggesting that we make in terms of weighing the evidence on the was there a crime question is that an issue that's appropriate for for an eventual hearing if we conclude the issue has not been procedural didn't see a lot of discussion of that in her report recommendation either i find her her conclusions focused once again on why does this defendant the guilty party as opposed to was there a crime committed in the first place and my recollection or impression is that that's because again of the concessions made by mr nelson and his filings with  the to the medical evidence so it's discussed but i don't see a conclusion that says that wouldn't have been persuasive either and the reason i'm harping on this it seems to me that really goes back to the miscarriage of medical report from the doctor the examination was compelling all of the senses i got that he told the prosecutor didn't have to do to make it available any earlier he'd take a look at a trial this is that's not a road mr it was going to go down and maybe he had such faith in doctors  just never crossed his mind that maybe the doctor was wrong and yet if there's evidence that could have been off for the maybe the doctor is wrong then everything seems to change after that and indeed even mr nelson's attitude may be different and i sit and wonder why does he make the concessions he makes to the state courts which you clearly does and yet attach to the investigators report which raises this question and i have to conclude this because he thought there had been abuse which suggests either he knew there was abuse because he was involved in it or he just mistakes response as i recall it was that the reason that mr nelson twice can see that abuse of the victim there's no doubt about that was because you didn't have the medical records available to him at that time but one of the documents that he appended to his personal strength petition was as i recollect was a reference within the ross report in which this investigator ross spoke with dr boss will pine various things as to the lack of quality of the state's medical experts conclusions so we have that except that evidence before him as to maybe this kid was never abused at all and if he had it why did you concede twice th whom who was the perpetrator in this case and quote he had the evidence before and i understand my time is up but if i may go on just for one more minute please fact that i will your honor mr nelson does not demonstrate that it is more likely than not that no reasonable juror would have convicted and had light of the new evidence even if the this court considers all of the evidence that he has put before the u s district court that's a tough standard to meet for a fundamental miscarriage of justice that no reasonable jury would have convicted him in light of the new evidence the court to consider the new evidence but also consider the testimony of all the other witnesses as well as mr nelson's admission which is highly  first like to address the topic of mr nelson's concessions in his pro se briefs to the state courts i would ask the court to keep in mind that he is a very an educated man and he was proceeding on his own without the assistance of counsel had really never been given any assistance from counsel and he was someone who had never before had any trouble whatsoever with the law he's completely unfamiliar with the court systems and so forth  mr nelson knew is that he didn't molest this little girl this second the state has asked the court to look at the trial record and i to go ahead welcome to the court to look at the trial record and what happened here that i think the reason the state wants your honor is to look at the testimony that was presented is because none of it was contested at trial none of the witnesses well there was some cross examination some little cross examination many of the witnesses there were no questions asked at all on cross examination and so what the state wants you to look at is what mr earl earles defense which was no defense in talking about again the behavioral testimony in terms of the girl acting out and some of the sexually precocious statements and actions that she took are sites to report showing that's much that behavior does not indicate sexual abuse it's more indicative of a child being developmentally delayed or having environmental instability which obviously this young girl has in terms of some of the statements that she made the reason that crawford versus washington is so important the reason the confrontation clause is still important is this girl meets statements that on their face many of them did not make any sense putting rocks in your pee pee the girls mental health counselor spent a great deal of time trying to elicit from her what does this statement mean until finally out of frustration she puts  up anatomically correct dollar in front of the girl and says show me daddy's got his rocks the girl hasn't stated that's where the rocks would be or that their dad is rocks or anything of that nature those statements were never investigated they were never explained because the child never testified and there was no investigation done and so state has indicated that there are but i never densher a hearing in this case with serve no purpose  and i respectfully disagree there was some expansion of the record and some limited discovery granted and part because mr earle had just started his file that's when i was appointed on the case that i had no documents to work from and therefore the court did allow some limited discovery and did allow us to just have missed the medical records however as the state themselves indicated they want to cross examine some of our witnesses while we want to cross examine the state's witnesses i think it it's impossible to state that there could not be further development of this record and that it would not assist in seeking the truth in this matter to have never densher hearing right