presided over the hearing heard the testimony of the three witnesses and issued a thorough and thoughtful twenty five page report recommending the position be present in this report he made multiple outcome determinative credibility find credibility finding by an impartial decision maker who heard the testimony personally live and observe the nonverbal cues and factors so there's a big red flag that's been raised for the district court so it's a very special circumstance yes i don't know what arafat's because the district courts very rarely overturn credibility findings so or often more often agree with them but i just thought that was that was interesting that after rabbits we don't have anything three heard testimony that they doubt it instead of rejecting it out right on the cold record and neither granites nor any of the other circuit case law really engages deeply with the constitutional concern and there's really sort of a more amorphous reference to well to to do this without hearing the witness to regularly and reconvening the evidence you're hearing in order to do that raised serious constitutional concerns and you know there's lots of constitutional hand wringing without actually identifying what the problem is so if you could maybe start with that and make your best case for why doing it this way is a constitutional violation sure and i guess it's it's actually the best the best cases because what i just said that this is a very unique circumstance because obviously district courts appellate courts review uphold records and make credibility terminations in certain the full hearing and make credibility terminations from the live testimony and when the district court disagrees with them it's not it's not approaching it in the first instance it's approaching it you know in direct contradiction to what's already it's already been found by the magistrate so as i said it's that it's a red flag that's not going to be present in your ordinary circumstance where you just you know interest i thought you might have said that because this is just no vote review and the it's not clear to be howard's do novo review if the district judge says but all oh except all the credibility findings of the other judicial officer who doesn't have article three protection trial that his lawyer was pressuring him to plead i don't understand the magistrate judge his credibility findings but i it doesn't look like it's the only fair way to look at th good morning jason bombay half the united states me please of course this is a rare and unique circumstance and it's a rare and unique circumstance when this court rejects credibility determinations of a district court but it can do it when there's a clear and there's no suggestion that in that where circumstance when this court would were to do it that due process requires this court to reconvene the evidence you're hearing and hear the testimony determination does not require a dyno vote here and i think if the judge has doubts about the credibility finding i don't think it goes quite that far but the footnote says that it gives the discretion to the district judge to accept rejects modify in whole or in part and doesn't specify that there's additional procedures you have to do to reject it i think the trouble is once you wipe the slate clean i think your honor said making a determination one way or another requires the district court to pass judgment on the credibility of the witness so for instance if the magistrate judge had said  i reject mr jackson's testimony i don't find him credible and he were to object to it it would be done over all review then the district court could accept that but in reality what he's still doing is saying i find mr jackson incredible as a witness i don't believe him even though he's never seen him in that scenario either in either result the district court is rejecting mr jackson's testimony without seeing him live and i think the process that is due is what the federal magistrate judges act calls for mr bone could we affirm this without creating a new circuit split with our colleagues on this question i think you could both the fifth circuit and the eleventh circuit have said there are unique circumstances where the record itself undermines the credibility i think it's the coalfield case out of the eleventh circuit and marshall out of the fifth let's say there are rare circumstances where the credibility of a witness is so undermined by something else and in this case it would be his contemporaneous letters to the district court saying opposite of what he says now i think there is the that would put us it seems to me that in the position of saying the magistrate judge who actually heard all this evidence was just completely off the reservation i think to say it was clearly erroneous determination of credibility and i think in fairness that's what the district court came to the conclusion of saying  he learns from his codefendant that the route he wants is available to him event after that writes the district just to complain about i don't want to go to trial and says nothing about well the route that i want to take i me i'm just not allowed pursue it he's very specific this is going her pleading guilty is clearly not the route i want to take do you believe that by itself is sufficient to undermine his claim now of going pleading guilty was clearly the route i wanted to take we just think that the district courts and district court looked at the entire record of it isn't as though he just looked at one piece of evidence or not he applied the right standard he looked at what's the credible evidence in this case suggest about mr jackson establishing a reasonable probability of pled guilty and we think the district court correctly clued it there is no credible evidence only if you discount what jackson said right and in so many contexts let's you know we we up hold criminal guilty verdicts because one witness who has all sorts of credibility problems is believed by a jury right that's true and one witness or one yourself statement can be enough to support a sentencing finding that enhances the sentence again from somebody who has all sorts of credibility problems but if the person if the if the trier of fact the jury or the judge on the spot says yeah i believe them that's good enough that's right here we've got a federal judge a magistra judge saying i believe him that's right i think problematically and that explanation of why he believed him is he said he would have no reason to raise this f s a claim in these letters and we just think that's incorrect he would have every reason having learned from his codefendant prior to writing that letter that he could in fact keep the f s a issue alive and we've guilty one think there is a reason it was just overlooked by the magistrate judge we're not saying that mr jackson didn't offer evidence of it we are saying that that's not objective or that's not credible evidence but we're not saying he didn't testify to that he certainly did we just think it was undermined by his own words contemporaneous to the time that he went to trial  and just briefly on the first issue of applying the right standard we do believe that there's some proof texting going on in their argument here yes the district judge said objective evidence but it's crystal clear he looked at the record as a whole and came to the conclusion that there isn't a reasonable probability in other words there wasn't any evidence that undermined judge have confidence in the outcome of what had happened points one in the air marshal in caufield case since the courts did create rare exceptions to this rule for specifically articulable bases and the transcript i haven't stopped it in reference sort of outside evidence as