defendants fisher and smith withheld specifically requested exculpatory evidence pertaining to my now thirty year old criminal case i would like to bring the court's attention to a case i found yesterday from this court and i beg your forgiveness for not citing it and not finding an earlier but the underlying facts in a case are almost identical to mine the cases de blasio vs city of new york one zero two fed third six fifty four it's nine hundred eighty three action filed after he was found not guilty after a second trial he was originally convicted of three separate drug sales in one possession was overturned on k b s corpus affirmed by this court one thirty two fed second one hundred three eight was overturned because the government failed to disclose a confidential informant who could have bolstered an entrapment defense is his defense was if he made the sales because he was made to believe he had to in order to save the confidential informants life just like my um but i wasn't i wasn't predisposed to sell drugs as a married man that's a conscious decision that's my decision my state of mind in my case the undisclosed government for it was susan miles she c bolster my entrapment defense that i was under the impression that i was saving her life her kid's life and informant dave miles's life she could also bolstered a sense that the first sale in question occurred on october thirteenth not november eleventh she could have testified to the letters now i can't get the letters in evidence because they were not withheld by fisher and smith they were withheld by ten tell all and his his informant david miles but she knew about the knowledge of the letters and the contents of the letters which i found out in two thousand and six but i did not know her knowledge was imputed to the government until two thousand and sixteen well within the statute of limitations of filing this case sue miles would lead to several individuals which knew a lot of a sculptor evidence especially martin gomez which i found out in october two thousand and seventeen he was gambling with dave miles on november fourth that's important because the prosecution's evidence was that m lost in atlantic city gambling the forty five hundred dollars he owed from the first sale in question the jury even inquired when did miles going to gambling binge in atlantic city we know that is now in nov fourth so he lost a forty five hundred dollars gambling in atlantic city on november fourth the sale could not have taken place on november eleventh it would had taken place early in the morning on nov fourth which was the original indictment date or sometime before that  i'm sorry or in october as was your theory correct actually it would had to be because i wasn't in new york state between october sixteenth and november eleventh so yes it would have been november thirteenth and regardless of predisposition the monthly sales regardless of that the monthly sales of miles had stopped in october once i got married no water predispose and here's where the lower court erred the outrageous government conduct he applied the federal standard instead of the state standard in the state standard gives me more protection protection and what he should have done is applied to four factors laid out in isaacson at forty four and why two d at page five twenty one night i went into that in my brief and the premise of is outrageous government conduct is when you create a crime that otherwise would have taken place in the state the government's job is to prevent crime not to create a crime i'm three thousand miles away i'm retired from dealing  drugs come in come on in i say no i keep saying no finally he asked me to come back in under the south regis ruse that i have to come in to save his life from these fictitious puerto rican drug dealers and now we come to defend it fisher he didn't lie to the court and may have eighty nine that said appendix twenty seven to twenty eight he says we were able to pinpoint the date he says we because he's talking about miles and the government he says that appendix seventy six he also said mile said it occurred on a new date he says that at appendix one hundred and i believe this until november of two thousand and sixteen and that's when i discovered that fisher didn't know about the indictment date being amended fisher's testimony he says miles couldn't remember specific dates and he says he's unclear on the dates and fisher he is miles handler he's assigned to talk to miles so the question becomes the defendant smith go to fisher to talk to miles about new dates upon smith receiving ten tills may third secret memo the answer is no because officials testimony before you run out of time how do you address the statute of limitations question you are making brady arguments in the mid one nine hundred ninety s crack i i didn't know soon miles as a confidential informant so all the evidence now i have stu miles as part of the government and all her knowledge is imputed to the government i didn't know that till two thousand and sixteen and i don't know about the of all these other people that sue miles knew as well as especially martin gomez who purely shows that it's he's not guilty of all the not guilty of of the i cover charges november charges  versus humphrey bars mr crow murs claims and in the event that heck does not bar mr commerce claims they are on timely as to the absolute immunity mr kromer  mister entitled to absolute immunity when he is making a motion to amend the indictment because that is a function that is reserved to the prosecutor at that point mr kromer had already been arrested indicted and arraigned in clearly the judicial phase of the criminal process was in effect at that time while i'm sorry was one of the question he was the prosecutor assigned to mr combers case at that time equivalent of requesting that this court declare his criminal conviction invalid this is not the appropriate vehicle or the form for mr kromer to do so since his conviction is still valid and moving to the hulk issue if to recover monetary damages the heck rule is that a section one thousand nine hundred three plaintiff must prove that his criminal conviction was reversed expunge called into question or invalidated at this point mr cromer conviction is still valid and has not been called into question and in fact throughout the thirty years that mr kromer has challenges criminal conviction every court has affirmed on direct appeal it was affirmed through for forty had an opportunity to pursue hevia while he was incarcerated for fifteen years and in fact did so mr kromer had access to federal form this is not a case where an exception to hack has been conviction we asked the court affirmed the district court's dismissal of mr commerce complain state former state trooper now they're retired in different position defendants which is that at this time the evidence which mr kromer alleges was suppressed it wasn't clear it was in clearly established that the officers would have had an independent obligation without even an allegation that they were asked by defendant until them to turn it over to him which would have satisfied his obligation to do so and defendants are entitled to qualified immunity where they are not  sorry if they're entitled to qualified immunity where they're acting reasonably and not contrary to clearly established law the law on that issue was not clearly established with respect to their obligations in one thousand nine hundred eighty eight and as a consequence they would be entitled to qualified immunity here and that and has the benefit of allowing the court to avoid some of the trickier issues if that's the direction the court is interested in going and i'd like to come back to some of those with respect to the merits in particular there's essentially two threads in the merits one is that if the first conviction would have been invalid would have been shown to be invalid by offering proof that it in fact took place in october there's the problem with that that is also a problem with the entrapment defense which is that it's on its face somewhat implausible that a new trial reasonable new trial strategy was available by which the defendant would put forward evidence that he had in fact committed a prior felony drug crime for which he had not been charged and for which the statute of limitations was open if as mr cramer suggests he was to get on the stand and testify that october thirteenth he sold cocaine to mr miles evidence for that no reasonable jury would have believed or could have credited that defense because mr kromer for one at the transcript of his drug bust is negotiating price and quantity with mr miles which is not consistent with him coming in solely to save his friend's life he's still looking to get paid after and flying into new york to get paid by his own account after he supposedly gives up the drug trade on the date for which he was convicted of the first offense  and at the time of the drug bust he still indicates that he has lots of cocaine it's not even clear from that that he's planning to sell all of what he has to mr miles it looks like he has other cocaine or he's hoping to sell it all but isn't necessarily going to none of that  indicative of an individual who has been entrapped in his will there's been overcome and relatedly turning to to isaacson the standard under isaacson is extremely high and as an example of that if you look not has had the opportunity to challenge it has challenged it has appealed that all the way to the supreme court of the united states in law and also be for you than any other circuit court has taken had jurisprudence it would be the it would be the farthest that any court has taken it as far as antiterrorism act was in effect at the time the heck was decided and the collision that comes in after that is even larger with regard to second or successive petitions and it would be before that thank you the supreme court hasn't addressed which is an interesting scenario and it may someday it'll address that so i wonder how heck would have ruled had they known the d p a had gone into effect because what's happened is that people with constitutional violations cannot bring in those constitutional violations on a second successive paid loss here completely innocent so that that's another scenario that maybe save for another day  request to the police even though the police gave me all the other services specifically requested material so i don't think i have to plead that that mr tend to low sent a specific request over to the state whole and that's what giggler ruled even though it was they were playing musical chairs with the circuit tourney's and if the state police want to say they were part of the government or they didn't know they were part of the government that's a different argument they know they're part of the government all entrenchment is when you are first contacted by the police when first contact by the police i'm saying no no no no no after the fact now i come in and i think that the council of the place of footloose and fancy free with some of the facts there and i i explained that in my reply with respect to his argument time that night i do see my my time is up thank you thank you very very much that's the last case to be argued on the calendar this morning i'll ask the clerk to a