at page five of the answering brief mr hanson asserts that the result of this case will be the same regardless of whether it's reviewed by the state or federal courts about that he might be right and that is exactly why the district court erred in finding that his claim was procedurally defaulted i'm curious would you take the same position at a state court hearing that you took here in the are at least in your brief that you don't contest that mr henson's gateway actual innocence claim that he met that that's a difficult question to answer you are because that at that point is this if it goes back to state court that district attorney's office in elko county would handle that i do think there are some issues with judge to use determination here that and i think that as a matter of comedy that this issue should have been litigated first in the state court and i understand that i'm just curious because here in this case if i understand correctly there was evidence presented in th state's own witness basically agreed with the problems with the shaken baby determinations that were made then in the problems with that whole correct bit but if you look at dr settles testimony from the evidentiary hearing she also addressed the fact that she that she would have concluded that this that the global injuries that the victim in this case suffered were likely the result of intentional abuse and so there is a factual dispute here that i think the state court may need to look at in terms of whether or not it's convinced that he can make that actual innocence showing to get through the slip gateway out the actual innocence argument that it would be procedurally defaulted and technically exhausted it would fall within the scope of nevada's procedural default rules but in san gaffers as mass this court in or did it the state's argument in that case was that he had not fairly presented some claims in state core and that morgan law would then bar it on a return to state courts as organ doesn't give you a second go around but nevada lot does give you a second go around if you can meet the actual innocence except so but i just want to make a point i guess it's so in the absence of the actual innocence exception to the procedural bar she would agree that the district court was justified  it's self is exhausted because i think you would generally agree that it would be the question is whether the availability of that innocent six separate and changes that analysis right yes your honor in essence because he has not fairly presented ground ten in the state courts it you know excluding whether or not it's there is a procedural default that would apply it wasn't presented in state court so then the question becomes if he went back to state court would it clearly be dismissed as procedurally default and that here is not the case this is very similar it's a different context but very similar to what the supreme court addressed  vs boric poll where there the court was addressing whether or not a application for a petition for discretionary review to the illinois supreme court claims that are going to broad have broad scope statewide but the supreme court comes back in that case and says that that doesn't matter it's still unavailable remedy and we recognize that this may kind of undermine the state's purpose of having this discretionary review but it's still an available remedy that needs to be pursued in order for the claim to be fairly presented here we're dealing with a situation where nevada does have a success a petition bar it is trying to to discourage repetitive filings of state he views petitions but it does recognize an actual innocence exception and that's important of nevada has recognized that even want to petition or can't show cause for his procedural defaults if he can make a showing of actual innocence to get through that slot gateway he can have his constitutional claims heard on the merits that's what should happen in this case and it didn't and you're are you are you saying that if this were to go to nevada that the state of nevada and litigate in the case ones back in nevada with respect to the schlub way would oppose the petition or i don't i don't want to make any representations about what's going to happen what what oracle acknowledges that is the  only the remedy muswell vailable it doesn't excuse me if you're if you're not willing to say that the state would oppose if you're willing to say well listen gets passed the gate way i would i would view this is a different case but  oh i want to back up and talk a little bit of a practical things what we have here is someone who was convicted on the basis of the evidence was convicted presented in court clearly jackson was a virgin you're satisfied  in the intervening twenty years or so we as a country doctors and so on have learned a great deal about shaken baby syndrome and it turns out that there are a lot of mistaken convictions and it's pretty clear that we've got evidence here that shows that this is one nevada is litigating this case extensively trying to put that evidence to one side to keep him in jail despite the evidence that we now have that shows the debris likely innocent why are you doing this you doing this to a man who's very likely innocent i disagree that he's very likely innocent your honor i agree with our expert who looked at the global injuries in this case and said i still would have concluded that this is the result of intentional abuse  you don't contain and that issue should have been litigated in state court but you agree or don't contest that it's in your briefing at least that it's likely that no reasonable juror would convict based on what the evidence was of the defense evidence and your own evidence i don't think that i need to contest that your honor to contest the procedural issues to contest the fact that that evidence should ever been presented in the federal district court that that evidentiary hearing should have never happened because he never he never presented the state district court with a claim of actual innocence the state district court express held that found that he did not present that claim he was presenting a jackson versus virginia sufficiency the evidence claim he is not alleging that he is innocent that is those that express words of the state district court then when he gets to to the nevada supreme court on appeal you get these proper filings where he's trying to say this evidence undermines my conviction i'm innocent and in a footnote the nevada supreme court says we've looked at  proper filings we're not going to consider anything new that he's perfect presenting for the first time on appeal so this stuff was never considered by the district the state courts and that's that's the problem that i have with this case is that we've procedurally defaulted a claim that was never presented in stake or that's based on this court's precedent the nevada courts should in this case have the ability to decide whether they want to agree with this court on him in hit this court's decision in heaven as versus ochoa as to whether or not he there's a due process violation and because of that this this claim should have been pretty developed and presented in state court it wasn't and that then that creates a secondary problem of reaching but they still what was presented in federal court understand that you say it should have never been presented in federal court based on what was presented in federal court it seemed like what you were arguing in your brief is that ok we can't contest that shaken baby syndrome acceptance has changed and it would have affected this case and would have likely no reasonable jury would have convicted so i'm just trying to figure out then how then or what what is going on here in that i understand that you may want this decided and that's a fair fair argument that the state if they have a actual innocence provision similar to the to the federal provision that perhaps maybe it should've gone first if it was a procedur defaulted and technically exhausted and that's the whole question we have to decide but i'm still having trouble with how you say at one point in light of the evidence presented we understand that that would have changed the outcome you want to go back to the to the state court which would cause further delay when it seems like you recognize that this is highly problematic in terms of the conviction you're  if you read our briefing to can see that we think that the dish you know that the district court correctly found that he got to the actual innocence gave way we just we never reached that issue we are conceding that we're used to you don't contest right well we're contesting is that whether or not the district court had the authority to even consider the evidence at all and so because the district court erred by allowing the evidence to even be presented in federal court expert and to get this testimony before the state court yes i do your honor it was the basis for that his attorney tried to get an expert but the claims that were in front of the court were a challenge to some evidence at the penalty hearing and a jackson versus virginia claim challenging the sufficiency of evidence he never made to the state district court a claim or presented any allegations that i am actually innocent of this offense it's not until he gets the federal excuse me to the nevada supreme court that he starts saying that and then of asprin court says we're not going to consider anything that's raised for the first time on appeal that's a that's a standard rule this court does that all the time  didn't i just curious some sort of a stop would apply at the state court when when the state's expert in the federal proceedings seemed to agree that there was a problem and there is a problem with the shaken baby syndrome as it was applied in this case again your honor i think what dr settle testified to is that she agreed that there have been changes in the science but she still would have concluded that this was the result of intentional abuse and when you're doing that when you're doing an actual innocence analysis the state can present its own evidence to try to rebut the new evidence that's pretty being presented to get through the slug a way that's what talks about that that you you have to reserve your remaining i would your honor thank you so it please the court my name is a million bizarro c b kirshner and i represent the petitioner mark henson there's no dispute that mr hanson the trial was tainted from beginning to end by the use of scientific evidence that's now been widely debunked this state's own medical expert conceded that small files can kill children and that the shaken baby evidence as it was presented at mr hansen's trial twenty years ago was just wrong and the state hasn't challenge the lower court findings that mr hanson met the actual innocence standard and it hasn't challenge the lower court's finding that there was a due process violation mister connor just so that they do that's news to me your honor this is the first time and i think this court in its questions properly read the state's briefs not to be challenging the underlying evidence their experts testimony it was clear she said that she could not have testified that sh en baby syndrome based just on three specific injuries means that there was an intentional injury here what this state is saying now is that she had a different opinion on cause of death well that's an issue for trial but what she did say during the evidentiary hearing was directly in line with the defense expert dr janice aapl run and shaken baby syndrome doesn't even exist anymore in the american medical association calls it something else in here this conviction is solely based on scientific evidence there is no other evidence that implicates mr hanson what the state argued from opening semen so closing argument is that the science proves he killed this child and he didn't the science proves that he didn't kill this child and the the they're not contesting the major findings that judge do made what they're saying is well you should have gotten this hearing in the first place  might have but that's just simply not not right well let's take the difficulty i'm having and then you can get me through this is we've got both the actual innocence claim and then we have more of a jackson v virginia that there is flawed evidence at trial and it can't support a conviction so which of those is the focus of exhaustion in your view i don't think that a person has to go back to state court and present a federal procedural defense first and in this case i think the hearing was originally granted for purposes of the procedural defense of getting through the innocence gateway judge you correctly found that mr hanson presented evidence of his innocence and that the state court rejected it and that he had no available remedy in state court after she made the finding that mr hanson made his way through the gateway she acknowledged that some of that same evidence may be considered in the merits and i think that makes sense given the nature of the claim the claim is that there is a due process violation because of the development of science and in this courts and in his decision it talked about how that is something that develops later and why it is so important that the court consider it as a claim because forensic science changes over time and never is that more apparent than here in the shaken baby syndrome context where it has overwhelmingly changed and a number of people have been exonerated like mr hanson do you agree that this claim ted and actual innocence doesn't get raised until the nevada supreme court i disagree with that your honor while the claim the the words were sufficiency of the evidence what counsel was doing clearly was not sufficiency of the evidence he received he asked for funding for an expert and received it he hired the for more expert in the country d no question that what this hearing was going to be about certainly wasn't going to be sufficiency of the evidence because that doesn't need a hearing at all but what you have is an attorney who subpoenaed medical records who retained experts and who was all along moving in this direction a hearing and then a new judge came on board the court decided to have a hearing on the state's motion to dismiss and it's procedural arguments and the expert was available to talk to the court but the court specifically said no i don't want to hear from experts i just want to talk about the procedural issue right now and that's what they did before the court made its decision on whether or not to grant the motion to dismiss mr hansen's attorney submitted the affidavit of dr janice district court level but very clearly he did in the nevada supreme court we need asked to vacate his conviction when he specifically said that he was innocent and i totally agree with that i guess the question is was that too late to make this precise claim or is that too late to exhaust the claim i don't think it's too late i think because it ties directly into what was happening in the district court below and what about the put no in the event a supreme court that noted that i accepting but it's not accepting any new claims that he might be making at this point in time i think the footnote is confusing and it's something they often use in cases that involve pro se defendants but i think the part that matters is that it says we accept everything you've said we we acknowledge it and we deny it and i think that is very squarely where judges do was that this evidence was presented to the state court and the state court rejected it but that says it goes on to say to the extent that there's anything new then we're not deciding or we're not we're not deciding that and i don't think there was anything i think everything that mr hanssen did was tied directly to what his attorney was doing in post conviction in the district court below mr hanssen didn't provide for example new witnesses or new facts what he did do but claim nine and ten were they presented to the courts apolo they weren't and claim ten doesn't arise  until we're in in federal district court but the claim is an exhausted weak knowledge it's an exhausted but the way we get to this on exhausted claim is through the shop actual innocence gateway and so once we get through that gateway the courts permitted to consider that claim and so you you agree it was a that was a properly person and you're just saying that's excused yes it's excuse in this case is in line with what sup was talking about that he is an equitable remedy that this is designed to protect the wrongfully convicted and i think that's what there's nothing in the state offers nothing that says that the court can't use the same evidence presented in the shop actual innocence in the procedural defense it can't use that same evidence when considering the merits of the claim the state's suggestion of a remedy is completely unworkable it seems to be suggesting that sure you can have a schlub hearing and you can hear all of that evidence but then we have to forget everything we've heard and just look at the merits of the claim without the evidence that supports the claim but if we grant if we were to uphold judge to use order of course at the end of the order she grants the of habeas corpus but says that the state may retry if they elect to do that yes so that his actual innocence isn't a get home free yet correct correct  and so whether counsel argues well our expert would still say that causation that there's either alternate causation or different causation they would still be free to argue that correct a supreme court review of of the second petition discretionary or is that a mandatory review on appeal if he properly files a notice of appeal it's a mandatory review it's not an occasion where it's sort of like a petition for review where the court can accept the case or not they have to decide the appeal and they upheld it on the same procedural grounds so the case is same presentation on a discretionary appeal to a state supreme court are insufficient for exhaustion to the extent that they're relevant here right right this wasn't it's not like a petition for review of the final court that has a decision whether accept the case and review it or not mr hanson filed a timely notice of appeal that puts it squarely in the nevada supreme court's jurisdiction and they have to decide the case so your  not sought that sort of excuse from the nevada supreme court and you're required to take advantage of that procedural opportunity before you come to federal court how do you respond to that argument i disagree with i think that the just because  magic words weren't uttered in the way that they would like doesn't mean that what counsel mr hanley actually did when you look at the entire record was present actual innocence there can be no other explanation for him hiring experts for him subpoenaing the medical records for the hearing doubling in length over the course of two years if that hearing had taken place it would have been a presentation of why mr hanssen is innocent and it's important to remember that mr hanssen has always maintained his innocence or so he had made sure i understand your argument you're saying he did present nevada court actual innocence gateway type claim and that was improperly either done or the opportunity to make the claim was denied but he did make a shlep claim as to getting past the procedural default maybe not with respect to the substantive claim but he tried to do it and that that is so compliance with trying to take advantage of nevada procedures with respect of the  that's their argument yes i think it will work that way but that's a different than before when it doesn't even matter at that point in the supreme court so i think you would help us if if you said no it doesn't really matter you've got the federal defense here of actual innocence in a different context so don't really matter what happened in nevada but in agreeing with judge fletcher's proposition that suggests it doesn't matter it's just that you think the boxes which i think if i've completed the two slop in twenty fifty four i apologize i think easy to do so wish not being a procedural offense i don't think it does matter i think you get through the gate way you can present that for the first time in federal court that it does not matter if you did it or not in state court in this case though he did present it in state court when he was where did he present i mean just tell me where he presented court or how he presented it in state court he threw his motion requesting experts through the subpoenas the court granted but i think most where i'm sorry motion require requesting experts when he was bringing forth grounds one and three or when he was bringing forth grounds nine and ten he never brought grounds nine and so no i'm sorry so yes when he was first in the state court he was asking for the motion but i think it's most  post hearing before the judge granted the motion to dismiss when he filed he submitted dr janice apo vins affidavit and explained in her affidavit although not as extensive as if she had testified she goes through each of the state major experts and says why their testimony was incorrect why it was contrary to science and so so for twenty to fifty for the two purposes and diligence he did present this information and there is no authority that says that the evidence is excepted during schlepp hearing can't also be considered on the merits of a claim and so i think that it's frankly if i have divided them enough  the i think that this court was right when it pushed mr connor on what the state is doing here and not contesting it is i mean there's a flaw in the circuit if you don't contest something you've conceded it the idea that well we never get there is wrong they were their parents they could you know appeal on anything that they wanted and all we're doing here is delaying the inevitable hanssen is been in prison for over twenty years and he's been in prison for thirteen months since the court granted the writ that is enough time this court should affirm on these grounds thank you thank you thank you your honor just a couple of quick points first the purpose of the affidavit that was presented in state court the reason that counsel gave for presenting that affidavit can be found in excerpts of record twenty eighty seven where he explained that he agreed with the state when the state objected to the notice of expert witnesses on the grounds that he had not complied with the nevada rules of civil procedure on expert witness disclosures and providing an expert report he did not present a claim of actual innocence if you look at the response of the motion to dismiss which starts at page one nine hundred seventy four of the excerpts of record there is a single paragraph in that document that addresses the final mount middlemiss carriage of justice says nothing about dr op of and says nothing about actual innocence  and then through the entire hearing on the motion to dismiss which is found it excerpts of record twenty seventy eight through twenty one thirty seven there is not a single mention from the petitioners counsel about making a claim of i'm not asking you to concede but i want to for the purposes of the question i want you to concede that he did make the schlep argument in the state trial court but with respect to a different substantive claim that he wanted to get to assuming that he did make the show up gateway argument and it was either prevented from making out or might have succeeded but wasn't but it didn't get very far and  to a different substantive claim you mean with it when you say with respect to a different substance of claim you mean that is to say the claim he's now making claim to him the one who succeeded on the district court it's conceded he never made that substantive claim but matter that is now seeking to present a different substantive claim i think i think it would matter in this case your honor i think if he'd made the exact presentation to the state courts that he did to the federal courts it wouldn't it wouldn't matter but what matters here is that it would not matter it would not matter if he made the exact same presentation to the state courts that he did to the federal courts but we what we were dealing with here now in federal court is that they have gone way beyond just presenting dr affidavit they brought in an entirely nother a new expert oh yeah and i wasn't presented in state court that is this is a central component to the actual innocence finding in this case and might not understand that but what i'm really asking as you can  again with respect to the schlep gateway question i think if if he had presented the actual instance claim in state court and the state courts have rejected it said you don't get to the slug a way that i think would be enough but i don't that didn't happen here and i think there's an additional problem on top of that here because of the at the addition of dr monson to the actual innocence claim that was presented to the state courts thank you versus baker is submitted want to thank both of you for both the briefing and the argument the next case for argument is ramirez versus trans union