homicide on the evidence of a deuce to trial and the answer is no because the bottom mr saxon was convicted on the basis of his admitted one time act of sex with a minor victim but you know although you did get a very thoughtful dissenting opinion in illinois courts it was a dissent it wasn't you know in the jordy opinion and what those state courts did was that they put this together on the basis of this is not unusual a number of threads of circumstantial evidence certainly sexual contact was part of it the forensic evidence on how recent it had to have been and how it correlated with other biological evidence and the possibility of access to the victim are all factors in this case so it's awfully hard genuine was on reasonably applied i thought their hard to find they are hard to find and unfortunately one of the none of those four sided them in our in our briefs because they are so hard to find and because i mean i'm not but you know you've got him you've got him at the house probably around midnight there's this fight that's going outside people have checked on o w over the course of the evening so we know that she's still at the house as of the last check which was when eleven thirty or so sometime like that we have the evidence of the sexual contact and i realized that his argument is that it was before that day but i thought there was evidence that a jury could have credited that there would have been to generation of of the sperm had it been much earlier than that to exist three days later that we find the body that's right your honor and that's the state testimony doesn't last forever that's right but two things about the state's expert's testimony is mr gander he did testify that it was possible it is possible to obtain a sample of both d n a and sperm outside of that seventy two hour  window so it's possible that that that sample could have been obtained outside that window first of all and secondly and believe me didn't indicate that was likely though did he he said it was more likely within the seventy two hour all right so if a jury had credited that it was more likely that it was within seventy two hours and you have the food evidence also to suggest update approximate time of death again that is it's a piece of evidence that would've pointed to him sure and one just one thing about mr danders testimony as well as it used is it's important to understand why it's more likely within that seventy two hours that they would be able to obtain a sample and that's because of bodily functions like bell movements your own nation and wiping that has a tendency to degrade sample however mr sachs and had stated that the sex days prior to her disappearance if we take for hypothetical example that o w was killed and let's say that twenty sometime between midnight and whenever they would have woken up for school sure and seven in the morning so let's say the those things that would degrade the sample and making the likelihood of obtaining a sample two days after that very likely even though through two or three days well it was the thirtieth hypothetical she died on the twentieth so my point is that it is consistent with mr saxon's statement that he had sex with her two days before and you get almost five days out for the just if it's more likely that this is this suppose that a sexual assault was contemporaneous with or just immediately preceded the murder that's what the state's done these probably functions sure well it's more likely with to retain the sample within seventy two hours because of the body function right so it's less likely that a scenario a defense scenario would obtain basically i think and far less likely because of the passage of time  i don't think so your honor i think that if you know using my hypothetical on this one i would like to use the actual facts sure ok and what his actual testimony was is that it it's very unlikely that she was sexually assaulted and then get murdered right in to wake her up for school which i'm both parking at seven o'clock in the morning and so there's a seven hour period and also obviously the food evidence you know we know what she had for dinner last night and even though these photographs is your you correctly point out is one of your arguments are pretty sad to look at they do recover the stomach contents so they no on digested you know she if she'd been killed much later than it would have been digested i agree on one point thing i would point out is that the testimony was that you know what she had actually had for dinner on the night that she disappeared peace was chicken  pork and chicken corn and all that was found in the stomach was was corn and they were beans found as well which there is no testimony that she she had eaten that that night so it's unclear at least to me from from the testimony exactly at what point she was killed and why certain things were digested there are certain things weren't there this is certainly not part of the testimony in the case so your honors i think it's important to look at what the state actually did this case which was and are are are positions of state only showed beyond a reasonable doubt that mr saxon had sex with the victim as for the crimes which he was actually charged but they do also show i mean his house seems to be grand central station there are all sorts of people in and around this house some of whom live there some of whom are over there for this gathering party whatever you want to call it that night but there is testimony that mr saxon comes by a couple of times even including later on yes you're all right in that and we get him that far yes and that  wouldn't need to force entry i presume right well what are our positions that the evidence is directly undercut by the fact that as your honor mentioned there were numerous individuals in the house that night there was no testimony th mean please the court counsel read the stats from the attorney general's office for the respondent if i could i would like to start by briefly addressing the jurisdictional question i do you can if you want to but i have to say that our fellow circuits have read rules for as a rule that has one part that deals with the timing of when an inmate has actually filed something and another rule which discusses the location that the thing is supposed to go to a lot of people not just pro se people not just prisoners make the mistake of thinking that you file a notice of appeal in the court to which you are appealing instead of the court from which you are timing rule changes things and that it just gets routinely transferred back to the district court for logging in and then the record gets properly transmitted so i don't see anything wrong at all with  applying the particular timing rules that apply everybody knows when the when the prisoner complaints arrive they arrive typically later than the date when they should have arrived whenever you wind up needing to use the timing rule so i don't think this is something that's at all consistent with the philosophy of the timing rule with the way we treat pro se and with the most logical reading of the rules just pull up rule for c here your argument ignores the fact that under di it says mistaken filing in the court of appeals this is not something you know you send your notice of appeal to your best friend or to your uncle or to anybody else this applies only if you send something to the court of appeals itself so it narrows the uni verses the universe of mistaken places to the only one that matters which is the court of appeals and only then the court notes on the notice the date when it's received sends it to the just record and then the district court will look at that and apply if applicable for see that's what happened with that that's what happened here i understand petitioner to be saying foresee applies for guard in the city where the inmates and the applies only if you fight it if you can use for de then foresee may save you but i don't think anybody is saying this is not a case at a minimum in which he decides to send the notice of appeal to his mother you know this is a case where the notice of appeal which again you have no idea how often this mistake is made it's it's one of the common ones it's too bad that it's one of the common ones this is only if it goes to the court of appeals  of appeals duly transmits it to the just record in the just record then says is this a timely notice of appeal oh it's a prisoner let's see when the person put it in the prison system if i understand that right there you are saying that foresee applies if the inma sends it to the district court or to the court of appeals but not anywhere else and and well because for the applies only to the court of appeals there's no part of the rule that lets you get the benefit of a mistaken filing anyplace but the court of  it's a specific rule to a mistaken filing in the court of appeals which then directs the notice of appeal back to the district court and the district court accepts it as if it had come shown up in the district court that day but in the case of prisoners the district court realizes oh child up here this day but this is a prisoner and let's see when it went into the prison system so i don't think there's anything absurd about that well if i could if i could just puts him at the scene of the murder because the murder occurred during or after the sexual assault you know because the victim was found with her clothing off so it's not just motive it's timing it puts him at the scene we've also got the false explore pitch exculpatory statement regarding marvin llanfair that's significant two ways it shows consciousness of guilt he's trying to pin it on landcare after he knows that his d n a is found inside the victim and it's also the content of the statement he the statement shows that he knows the time of death and the manner of death and he knows it because he's the killer he says oh i know it was llanfair he has blood on his coat well no one told him the victim had been stabbed it's true the police had asked whether he carried a knife or whether he knew the victim to carry a knife but they didn't say anything about how she died was that not publicly known it's not as far as we know from the death because he killed her and he also made a statement about me in fear in reference to the time of death he said i saw him four days after she died no one knew when the victim died when she went missing on the evening of the twenty seventh about it's not on the thirtieth he knew when she died because she told her so the statement about exculpatory and it shows knowledge of the circumstances of the murder in addition to that we've got access to the house he lived there he had a better mirror the victim he was familiar with the law she visited that property frequently when his aunt lives there the garage is on a direct route between the house one fifty six liability and that residence at twelve thirty six maple where he told the police he thought when he left the house that night we have a lot of inappropriate comments about victim developing earlier and people interested in her and he loved her and this behavior of the dragging the victim into a locked room and wrestling with her he's twenty five she's twelve so all of that evidence is more likely to stay for the jury to find the petitioner the person who committed these crimes and certainly it wouldn't be unreasonable for the state court concluded that was the case just a couple of quick points about some of the things petitioner mentioned i think he's interpreting that he's over interpreted by d n a experts habits of an allied victim dissipating the d n a or at least a reasonable jury could conclude that was the case surprising there's no evidence so you would think this would be known in the forensic medical community how quickly does sperm degenerate so that you can't get a decent d n a sample how quickly does blood you know break down and become difficult mean there different kinds of tissue that are put or tested seems to me there must be some literature on that and he wasn't himself tested until five years later that's right as i understand it when i may have been a suspect all along but it was there was a five year gap before he ultimately was  prison for something else and then they got a warrant that's right you know in prison for and a sexual assault of another child when the warrant was executed in two thousand just one other point the petitioner mentioned he wasn't charged with sexual assault that's not exactly the full story he was charged with sexual assault as the predicate felony for felony murder it wasn't a stand alone charge but it was certainly part of the charge part of the proof one less likely it has it's reasonable for mr saxon being interviewed and asked about i'm not being involved in this in this killing to presume that there was blood that that came out of the victim trying so for him to say that knowledge of the specific facts before or on the opportunity evidence evidence i just wanted to finish off my thought shawn please there there were numerous individuals in that house although some of them have been tested and excluded as  contributors to the d n a we don't know how many were in that house and what's not of the women right you know and so it's only the men yes and they i thought they basically ruled out you know wasn't ruled out while my point is that there's no telling exactly who was in that house there is no definitive cataloguing of of the number of people that were in the house or how many people in the house that night because it was the testimony was that it was basically a party if you look at her it could be numerous others but the last point is it is really that all of those people were and were alleged to be intoxicated and and you know drinking taking drugs none of them there is no evidence that any of them left there is evidence evidence of this or saxon left so we think that that means it's more likely that god any one of those individuals that were left in the house and intoxicated that night