relatively low law and mr one clears it so long as his allegations warrant further exploration in the district court nd the police report is unquestionably immaterial if it contradicts the key testimony from the key witness in the case undermines his credibility and point straight at alternative perjury and rd mr blunt adequately alleges that the report suppressed there is no point where defense counsel relies on refers to it uses it nor anything like that is no evidence she received that are and based on his power we think that is enough to let the district or determine conclusively whether it was  what about the the certificate of service suggesting that in fact counsel received the dock your honor it does suggest counsel received it but i think on the other side of the ledger isn't our aren't we supposed to presume that  service properly you know signed and attested to in the absence of any other evidence indicates that a party opposing party in fact received whatever was in this case discovery materials is sure your honor and i think a service actually says it's a generic certificate of service read that doesn't to cover page identify a series of documents that are in fact attached to that that larger set of papers it identifies a series of documents or honor i think the difference is that nothing in that document suggest nothing after that i should say suggest that defense counsel actually received it and based on the power of the information well how what else could we require to suggest that defense counsel actually received it certificate of service is how that works it is sure your honor i mean i think there are a number of things that you require it would be that that either it's mentioned somewhere else in the record or there are some explanation for why it wasn't used but you know that might be nice to have the but do you think it's actually require it would be nice to have and i think the way that that the court a gatekeeper on the twenty to forty four the question is not whether mr blount can prove that his counsel didn't get the document it's whether the record conclusively forecloses that she received it and i don't think it does because the evidence is so tone but if you look back at the document what it reflects is a very different description right after the attack it says that thomas described his attacker as having a green demeanor as having a thin bill as being a smoker it describes a person that is fundamentally inconsistent with mr thomas testimony at trial i don't know it's not unfair i guess to suggest to tell us that the prosecutor honed in on that and consider that the issue during the height that certainly  but i don't think it's fair to say that that was the only piece of evidence that the state relied on the commonwealth in this case relied on i mean there were other other there was other evidence there were other witnesses who testified and i think critical to this case was the forensic evidence that indicated among other things that your clients think the prints were on document found inside the safe so i when you when you talk about materiality i think you have to talk about in the context of the entire evidence so tell us why you think even considering the entire property satterwhite is found with the car satterwhite fingerprints are on the car mistress rules and he is found in the trunk and mr blunt story it is that his fingerprints are on the evidence his name his address at a pawn shop that where the owner knew who he was to me that's pretty inconsistent with the idea that if you rob mr thomas i mean it would be pretty foolish to rob a man and take the property and identify yourself to the actual crime to the thomas himself and to thomas home house is testimony is the only thing that makes that connection and without if thomas lacks credibility if thomas his testimony at trial is incompatible with his description of the attacker right after the attack then that falls apart and then when we have is a case where there's physical evidence pointing to three different people maybe that evidence might be sufficient but i think there's a good reason to think the trial might have happened differently if when the government stands up at the end and says it's got to be him because the victim says it is definitely him soley based on height mr blunt could pretty easily say but you describe somebody different you describe somebody we're all are and i'm not your my or paul or i'm the only one with physical evidence that's your height or shorter that supports mr blunt's defense and point squarely at the alternative perpetrators who both received immunity they both had reason to lie they both had aren't credibility i mean mr sproule in particular he's the one who most closely matches the description in suppress that the police files describe him as having a thin bill an angry range that is shorter than five but i think that the numbers are less important than the fact of my height or fall or versus my hyper short that's your question about the diligence so do you dispute that in fact this  eleven plus years before bringing this nd petition given that the evidence was in the court file and given that he did not file this for a request and told up in years later shirt i think i suppose if we give the discourse the opportunity but can't we also decide as a matter of law that on this record that doesn't seem diligence you could your honor and i think as a matter of law it doesn't show lack abilities there are plenty of boy excited cases where although th evidence isn't in the court file it's in the public record and the issue is could the british and or have done for your earlier and court after court says that's not our state diligence standard is reasonable under the circumstances were you looking for file makes this different because you wouldn't expect mr blunt to look there for you would expect him to file his other he is petition which he did file he went through the state process then he went through the federal ross and at that point is when he  gets into the foyer situation and i think if anything it really just points up another issue of fact that makes this case the sort that the district court could sort out i mean there isn't evidence there isn't testimony about what exactly mr blunt was doing and papers aren't nearly as strong as you think they are you know there are some alternative inferences you can make so the case back out of this or the poor old evidentiary hearing takes testimony from defense counsel from prosecutors and ultimately concludes that the evidence was suppressed and in that case is another one where the court emphasizes in remanding case the diligence is sort of district court inquiry that is done the same way as suppression i think that's the kind of situation that can happen here that don't have to show very much in front of us go back to this to court a whole different story but if your fundamental claim that this evidence that you say was withheld i think you have kind of a tough road to show that actually is material i know it's such a small difference in the world of difference or you know i think i take your point your honor i see that the record as a whole is different and i think that the wool case is a pretty good example of this yeah i don't remember it quite that way but i will i mean i don't i don't think the facts quite line up and they don't quite i take your point you know the overarching principle from  evidence i'm not sure i understood i understand your argument honestly and you and i have read it but this is in this witness i think it would be hard to say that he had lied whatever he was saying just it didn't read to me that anybody would say that i think mean i think if anything your honor especially starting from the position from williams and describe how low the standard is in this situation and i think the question i actually flew to you and say if you're not sure that it's immaterial if this is the case we have thought of going back and forth that cries out for the district court to really get involved and make that money because the twenty to forty four stander unlight it's not if you look we're not sure that it's immaterial we need to believe that it is material under the standard no your honor the standard is a prima facia case that there's a possibility the district court will find that it's material material these each case is where the evidence is just cumulative of what was actually discussed it or where there is some other identifying witness that was missed of a lot at the scene or physical evidence at thomas home there is none of brain claim is always difficult at least in my experience in this court it's hard for somebody to prove a break in period i i i can i can understand that your honor and i think you know that also ok because what that would that would sort of point in the past when the fact of assistants like to say under events which ariel case the defense counsel failed to look in the file failed to use the evidence that was so powerful but i think given the posture where we are today it's difficult to to make that claim it's difficult to play out how you know how this case through develop once you once the district court were able to get evidence from the defense counsel and from prosecutors and dig deeper into the record that this point all we have is is just trial and script essentially and a motion from mr blunt that says i had no idea this evidence was there and and when you look at it on that i'd like to start out with just yes question about diligence i think judge is you're absolutely right the fact that there is and seventeen years time and we're talking about information that was apparently in the file suggests not only a lack of dependence on file is because by definition it's not rape it's not how something you tell me where you made the that argument in your brief your honor we did we did it was in a footnote right there is a footnote with a reference to diligence but i don't think that the question strictly stays with delegates i was disagreeing with that yes that seven years a long time to wait to find something in your file but i think the broader point goes to the question of whether it was withheld and i think the point the i think you're entitled to rely on it for that i'm not sure you've made that diligence argument straight up that we wouldn't honor at this point i think that i think that's that's fair judgment but but i think the broader point is is that in so far as we're talking about  in fact that we have a certificate of service and i agree with your honor's and it would be unusual soon not only look behind the certificate of service but even for this even professed to assume that it was not turned over and i think incomplete record and this case is different because we do have that happen all stick around for that reason i think it's fair to certainly recognize that we're looking at a reasonable possible standard but not to ignore the record as it stands and rather to sort of assume against the facts in the record that this wasn't and he done any looking at cases like this there are likely the likelihood that they would come around and somebody would grant the writ here lend the likelihood that those cases were ultimately the defendant would ultimately prevail your honor i can't say that i've done a sort of full scope search but i think i have thought about that question i think in one case that's really interesting is which my friend that's a case where this court did grant the petition and i would say be evidence is far stronger the evidence yeah but what that it's do you know it's always worthwhile i guess citing authority which has better facts for that well i think that generally happens well and i think that your point to evidence was stronger many defeats your point about well anyway i'm not sure that that necessarily proves that less strong evidence doesn't get you that hearing before the district court it may demonstrate to you that the hearings aren't going to be worth much because even if you had stronger evidence you're going to correctly i believe so then the question for us is how deeply are we supposed to delve into the merits in order to assess that given the stage which we find ourselves your honor i think it is certainly not a full overview of the merits but but this court does have the i mean there were all kinds of things you could have done to straighten this out that's true you're running you're testing my met my recollection of the record i actually think there was a motion to measure someone in front of the jury i'm not sure what i think was right was but anyway but your honor the prosecutor did point out that no standard under which the height of a witness to testify and who did that is how to testify specifically about his there is no standard under which that you have and that's true then we're left with literally one huge materiality of this this question of height and the question of credibility of the victim was litigated it was litigated extensively at trial this was even not extensively enough for the government to make a clear record on this i mean we don't have the same person named police officer giving the same measurements do all three of these people and i have to say that i think that these estimates of height pretty you know i'd like to know what the expertise of the person is i have trouble estimating it's like maybe it's just i'm bringing in permissible personal experience to this your i understand i i were different if they were all throw one thing but one marched in and then marched out and then another when one especially if we have two or three or four inches separating them your honor even if you have trouble about even if you have trouble with the idea that the jury would be to be able to the fact that we estimate the height right i think it eighty eight year old victim because he made the point about what counsel would have done assuming cops and i think that's a fair assumption so what why should we question the issue with respect to the documents and what she would have done or not done with the documents and jury made that determination and this happens and i think that what it goes to the reason why it's very unlikely and i would say to the point where it's in from not a perfect restoration is so what likely that this would have changed the outcome it's just another piece feet doesn't change the fact that his fingerprints and he is now the alternate suspect that my friend has or training tension on this ng or as i know they're not are and they're certainly not on the evidence from inside save and that does connect mr black to the house because you obviously have been privy to this we all know that this happens we've seen tragic unfortunate circumstances where the government is absolutely certain about defendant's guilt only bound to find out one hundred and two thousand five hundred and thirty years later that a horrible mistake has been made so and so there are there are interests in serving finality and and of course the committee of protecting the state's interest in their own criminal actions of well i agree that is certainly an interest at this point in mind there are other interests on the other side of the ledger as well yes but i thought that was a really good question because this is such a preliminary stage and all the interests that you have been emphasizing really have a very strong role to play if it went back to the district or lawyer resources to just grant the writ and let you go down and let them try to make their case in a district court and so that's where i think this whole balance and the very  function is to look into time and whether there is any reasonable possibility that mr blount will be able to show again this court has the benefit of really everything that we're ever going to see in this case with the exception of the question of whether that is actually withheld and if you can assume for the very small piece of evidence have an available at trial which again is not inconsistent with mr blount as the perpetrator and is inconsistent with both of the other alternatives thank you thank you and it's true that we have the trial transcript in this case but we're missing a very key piece of evidence in the record and that is anything from defense counsel and from the prosecutor's about what happened then in many of these cases that affidavit from trial this i guess two points there the st is that i'm not suggesting that whether that an inch of white is material here i don't think the trial transcript reflects that the key issue at the trial is this range of fight is whether the  taller versus thomas's height were short when the prosecution goes through its closing argument which is what you can look at is the key the prosecutor lines that up and he says thomas is one hundred percent certain why this piece of evidence is such a game changer because it's true that the alternative perpetrator theory was raised at trial it's true that mr blunt pointed to the other the other evidence and its weakness and he undermined thomas credibility but this document is the key to change the game because this is the only thing that mr blount has to say you can use to describe the attacker in a very different way and a time when it was far more likely to be accurate it was right after the attack when situation where the the witness's testimony evolves that many other courts have found is immaterial and i point you to the whole case where a single use of impeachment evidence against the single source of direct evidence against the defendant was enough to be material under brady thomas from the southern district of new york is a similar case it's about height and whether the initial description from the victim was accurate as compared to the later description and i got close with  job for your client we will come down and greet the lawyers and then go directly to the next case