they please the court no shammai for superintendent justin thomas the district court erred want to fail to provide any deference to the state courts determinations of david bryant's actual innocence and ineffective assistance claims i'm going to focus on the actual innocence claim because as for ineffective assistance there's been no response to the issue of t v lane prohibiting review of the claim on this appeal in that strickland was actually decided four years after his conviction became final as well there's been no response to the prejudice analysis in our brief in which we point out that no court that the lower court failed to actually conduct an ad to review prejudice and the respondents brief on page fifty five again conducts an overview of the prejudice on district under strickland yes if it were to apply under strickland the add to analysis is simply not there what is there is a do no overview analysis and so there's actually nothing there there's that aren't alone in this case should be denied on ineffective assistance grounds on those two cross examination and understanding of what the the medical examiner testified of this to find could have been excluded that's what the blood evidence could have produced the his the his blood type could have produced but i think mr said he didn't understand this it was beyond his can and then in one nine hundred seventy six when the trial was that to even look at cereal logical evidence first the evidence refuting his suggestion that he didn't understand certain logical evidence he in fact ask questions about certain logical evidence at the trial and identified another specialist in serai g and discussed a prior trial and they knew gucci in this trial so the idea that he'd had did not have certain logical evidence on his radar wait a second you're telling us what we're doing you better be careful with telling me what i'm doing you know i don't mean it's like i'm second of all that the trial court said that it had to be to medical certainty or scientific certainty  disagree with what that standard is that's a lot of question we could disagree with that as as judge sweet did and and if judge wheat was right in disagreeing with that judge we can analyze the fact that there were two sets of experts would disagree and one said at best they were inconclusive the results were inconclusive and then could analyze the fact that expert said it was inconclusive and on trying to understand whether they established to create a claim of actual innocence so the fact that the lower that the state court in a four forty ten proceeding opposed conviction imposed appeal proceeding imposed a clearly clearly convincing standard might been appropriate under state law but does not bind us either as to the ultimate finding fat nor does it it's conclusion that it wasn't that there's a little that we're now but and it's throughout his record you can read it is every statement is i have no recollection nor a correction the questions that were called unequivocal actually start with you record do you recall or i understand you don't recall but these are not unequivocal responses furthermore he was not asked about a single strategy he had he actually had he was only asked if he didn't have a strategy as to this so the appellate division which has unique fact finding ability reviewed this entire record and said although it's an implicit finding it's not explicit in the record it's said it this is not credible testimony and consequently found he received effective assistance because once you get past the first step then it's simply applying harichand director and you have and you look for any plausible justification for his actions of which we identify potential as many as ten different plausible justifications in our brief now as for the actual innocence claim to respond to the  and i freely admit the mistake was made by the parties which is no one brought the notation that said semen also blood which is on the single page where it actually pops and says positive result to the attention of either expert no one brought that to their it and their attention and yes it is a mistake but it's a rather substantial mistake because if you take the notation and then read dr wieners testimony they match perfectly because he says and i quote while i can't quote i paraphrase this is probably semen together with blood it's actually a trial and that's his trial testimony which means he was saying it is a mixed sample dr shaler came forward was not that we know it was not brought to his attention based on his cold reading of a thirty seven year old record he said i don't believe he meant that there was any blood mixed into this but if there was and this is their expert he said i would not be able to determine whether or not he is excluded or no that my time is up we could finish the thought of that so but based on that simple it does not exonerate the defendant the actual correct answer and the only answer on this thirty seven year old record is that it is an inconclusive finding the question i have is where we started is if there was blood testing of defended bryant at the time isn't it possible that would have been exclusionary that's all i'm asking we can't actually answer that question because all of the materials that we would need to actually tested which is the appropriate way to bring this claim have been lost because of the extraordinary delay of bringing an innocence claim all right fair enough thank you brought out at this trial we know on its face there's a twenty percent chance twenty percent chance that david bryant was excluded period because they never tested to determine the secreted status of the victim so the second so when they knew it was all they knew it was oh no they didn't know whether it was bloody hand or semen for certain they didn't know or it's also possible that she could have been a secrete highly unlikely i would stay with me yes with me now from in here all right so what they knew was they knew the blood they knew the blood type of what was on her underwear right they knew that there was at least one event they didn't know if she was a secrete or advantage and they didn't know what and and his lawyer knew nothing about his blood type and so the because he didn't test him and then test them so it doesn't matter what and so when or says i don't know i can't tell for certain it's inconclusive but he couldn't say i'm sure that his blood is that that the that the art and all his lawyer had to do was introduced that he didn't have to prove that his client or that someone else had done the crime all he had to do was prove that what what was in her underwear was completely inconsistent with what he could have put there in that the case that is absolutely the case the the the respawn it's been argued also that well that this that this determination of zero blood found in the testing of it possibly had a mixture of blood and semen and if you really are the experts kind of the experts are argument about that problem because where the state court judge ultimately sa nobody can tell me with scientific certainty what was on her underwear this is what this is what we intercept a trial and i think it's really important the item is obviously stained with the referring to the panties the item is obviously staying with blood i didn't make any test along that line i was looking particularly for semen stains and looking for semen stains he explained we do it visually we have to have something that looks like something if visually we don't see anything that looks like anything no tests are done he said he would it that it is been because the panties had blood on them obviously because this was a brutal and what was tested and what was determined only to have blood group you know what we may not know for certain but his it the other thing he says in his testimony wiener says he also says that when you stain jury could have come to a different conclusion it if it had been presented with some of this blunt evidence that we don't see but i don't know that that goes to actual innocence and what about some of the other evidence is pretty compelling here evidence of guilt i'm sorry including the confession and the some of the other evidence that that's point pointed out in the right brief so how  respond to that well i respond to it that you know in one nine hundred seventy six when a whole bunch about false confessions and we attempted in the state court to introduce some evidence about what we now know about false confessions and we all know now that you know time is a big factor the intelligence of the person that has been interrogated the constant denial of his denials by the by the police and if you and i think we laid it out pretty thoroughly  in the brief the extent to which he was questioned by the various officers and each and every time he was told he was you know they didn't believe him no he was wrong and they kept up the questioning kept up the questioning we attempted to introduce evidence to show that in nothing i understand the question is will have there he changed his clothing yet but the question you know at trial he's asked when they come to his house that is asking to you know put the clothing on that you were wearing yesterday and he puts that clothing on every witness that described the clothing that they saw david wearing that they confirmed the exact same clothing that in fact he put on and more which they took into evidence and they tested dr wiener tested this close to determine whether there was any blood or semen on it and each and every test indicated there was nothing there so quite obviously the police during the prosecution of this case believed in fact that the clothing that  when they came to his house unannounced that o'clock in the morning and took them down to the police station that in fact that the clothing that he put on was the clothing he wore the day before with respect to the it was a girlfriend that said something that he might have done something to a girl and one of them was when the phone call in the father testified that in fact the phone never rang that that morning that the call couldn't have happened she wanted never cell phone right nobody had a cell phone but the phone the father said he had the phone with the phone was in the bedroom and that in fact was no call that morning with respect to the other girl that came in she indicated that she just told about this the week before the bill affidavit really is significant in this because it was a lot of plays police pressured the billy tyler affidavit indicates that he was put under a lot of pressure and i suggest you that in fact that affidavit because there was never any testimony of the court refused to  put in a testimony on the or allow us to put in testimony but that affidavit indicates that he was put on the run lots of pressure to to place to place david bryant next to this girl and he was the last person known to have seen her alive the state they say they put in the say it doesn't really mean anything it wasn't that significant was very significant he was the one he was the one person that put david bryant and  question goes to absence of notations that's what this entire case boils down to the absence of notations in the lab report that is the basis of doctor shows testimony and the conflict with dr samples testimony the absence of notations the fact that things weren't  no in the fact that they did not note whether or not there was bacteria which would explain the acid phosphatase and they didn't know what cells necessarily were found within the sample and said he simply said detritus which could mean broken down cells in other words all of the questions were answered with unfortunately the answer is we don't know and we don't know because he sat on his hands for thirty seven years and the supreme court has said if you and i q's i mean if he does not your honor we have a state court opinion specifically at the hearing saying he's a manipulator that it's watched him and he does not have that i q that's the only statement in the record we have talk you believe tyler we believe testimony saying i was with my mother every time i spoke with the police well thirty seven years ago he f recantation thirty five years ago thirty years ago twenty five years ago we talked to his mother well how is it possible would you let him talk to police without you present ok so the question i have finally comes down to the evidence cuts both w see both sides have made a case but what a reasonable juror at the time have had doubt about the guilt of david bryant presented with all this evidence that we're talking about now and i conclude it's likely that a reasonable juror would have that down and your honor we disagree but we disagree because there's one piece of evidence that hasn't focused on enough which is david bryant's own trial testimony the fact is everyone keeps  his confession as confession wasn't the basis of the jury going in you're guilty david bryant took the stand and he lied and he lied and he lied and he had to admit to lying on cross examination and admit to creating an alibi attempting to he had to admit to lying to her corrections he had to pretend that everyone else was a liar he actually said that in no uncertain terms he said for civilian witnesses fabricated evidence against him the two heard his admissions they did something to a girl he didn't speak to them according to him then you have the man who saw him with the knife the father and then by the way all these people are friends of his one has a child in common with them one was his then girlfriend these are all testifying against him you know five police officers all of whom would have to be liars to credit him the jury only asked to rehear his testimony i see my time as a frame truthfully and the jury only asked to rehear his testimony and it was his testimony combined with all of his admissions and if you read them one after another and i see you do you see how his statements kept change not talk about the confession take it away for just a moment and you'll see how a son his alibi that he initially started with so many changes when you get to the trial because the people he sought out to help him to make up the alibi dissent as well as the judge who saw the proceedings and ultimately jury came to the same conclusion and there's no been been no response by the district court or his attorneys explaining how