i hope you're not going to read all of those during the argument good morning your honor may please the court my name is gail horn and i represent the appellant albert kirkman in this matter mr curtin has alleged that he was wrongfully convicted of a double murder and attempted murder but he did not commit the sole evidence against him and his trial was the testimony of the surviving victim willie johnson this case actually starts and it stops with mr johnson there was no physical evidence connecting mr kirkman to the crime there were no other witnesses connecting mr kirkman to the crime and there was also the math return time is short a i wonder if you can be persuaded to address the language of twenty to fifty four d saying that to have a claim one must show that the state court has acted out of step with the decisions of the supreme court of the united states your fundamental argument here is that kirkman as you know in the supreme court in herrera said that's not an independent claim is there any place where the supreme court has treated him innocent as an independent well your honor i think that we actually made two separate claims there is certainly an actual innocence claim and i will concede that the supreme court has left the question open as to whether or not that's a cognize of a claim in federal hate b s but what we've argued is that this circuits of collateral really and what happens is summary reversal in which the supreme court says you can't do that it's actually been increasingly loud and impolite in recent years when making that well i want to know what decisions of the supreme court clearly established the propositions on which you are relying well your honor as we discussed in our innocence and mesereau the court expressly said it wasn't passing on the innocence of the defendants that were before the court what it said instead was it was discussing the integrity of the criminal process i think that's a near quote from the opinion itself and the facts of mesereau are very similar to the facts in this case in mesereau there was a government witness who had provided testimony at trial subsequent to the trial the government witness started saying things that were either subjectively not believable or objective lee proven to be untrue or the government brought that before the court and said let's have a credibility hearing to determine whether or not this witness on whom these defendants convictions rested is reliable and the supreme court said no that you can't have a criminal conviction based on tainted testimony was the it was m authority over the lower federal courts but the language and the discussion in mesereau directly applies here and it has been cited in interpreted to apply more broadly i would submit that the mechanism by which was decided that the court said it had supervisory so in your view then statements like the one in herrera are simply wrong because the supreme court has misinterpreted its own decisions well when a rarity shows claims herrera well as a general matter i think herrera has been interpreted not to say that claims of actual innocence are foreclosed but that that it is an open question i believe the macwhich in case that we cited in our brief says much what i think differentiates herrera and the herrera line of cases from mesereau is what mesereau says is i think the quote is the decision here in passes only on the integrity of a criminal trial in the federal courts it does not determine the guilt or innocence of the petitioners and so i think the concern that's articulated in mesereau shit is different from what was discussed in herrera because what mesereau is discussing is the integrity of the criminal procedure in the administration of justice and what mesereau says is i have some difficulty understanding your problem with the integrity of trauma you're not certain i'm here good at the time of the trial the prosecutors themselves believe the truncheon was lying no your honor we're not right he recanted afterward so what was wrong with the trial well your honor i think that that does actually parallel the mesereau case i mean the government was saying and mesereau we don't think this informant was lying at trial we think that he had a psychotic break subsequent to trial and as a result of that psychotic break gave unbelievable testimony and other proceedings were what we're arguing here is that mr johnson lied at trial he's admitted he lied to tr well your honor what we're saying is that mr johnson actually he has admitted he lied at trial he was subsequently convicted george johnson has asserted that he lied trial and after a hearing a state judge found that johnson is lying now and was telling the truth trial right these recantations are always very difficult but i'm having trouble with the fact that it is clearly established as a matter of federal this is not satisfactory but i think that her era certainly stands for what it stands for and our interpretation of her error is that it has left the question open herrera specifically with regard to look i understand even  means it's open not that it's been clearly established by the supreme court that you win but that well it's open at and i understand that your honor but i believe that mesereau is still good law that would govern the decision in the end well i won't go through this again but if you're right about measure rush then herrera just misunderstood the wall and we you want us to write an opinion saying well we see what reversed just  fact that there is a distinction between an independent due process violation that occurs when evidence is so compelling evidence like that presented in mesereau and evidence like that presented in this case versus an actual about supreme court law how do you satisfy the d two problem with respect to the state courts credibility findings here all right i mean i this just seems to be a totally intractable one gives deaf great deference to the presumptions and the fight the findings of fact made by the state court but it's not as if that forecloses relief and i think in this case there were a number of ways in which the state courts made their credibility finding that are not proper and make it objective lete and reasonable i think the st one is that much of its opinion hinged on speculation we tell juries all the time you can't make a decision in this case based on speculation sympathy bias prejudice in this case what the court did was make its determination that this entire recantation by mr johnson must have been motivated by gangs by some kind of gang connection there was no actual evidence of that in the record and if there are any dispute that there were no evidence there was no evidence the court itself the circuit court made that clear by saying i have no idea why the vice lords through willy johnson would urge this recantation and the reason was there was just no proof of it there was no evidence that any of these individuals twenty years after the fact were still in the gang no evidence that billy johnson harbored some resentment towards keith ford no evidence that there was some vendetta all there was was a phone call that he made to somebody he trusted who happened to be in again and who said to him tell the truth if you know this go ahead and tell the truth and if you make a credibility finding i would argue that was one of the centerpieces of the state courts credibility findings if you make a credibility finding based on speculation that is objective really and reasonable similarly the court focused on the trivial trivial facts took collateral impeachment and again made it the centerpiece of its credibility terminations the court said it's very inconsistent that mr johnson said he received threats in the emergency room and we know that there was no phone in the emergency room well the issue of the threats was sort of where they occurred was a bit of a red herring i would submit because mr johnson knew to be afraid of keith earlier in the day keith ford had threatened him and said if you had you better watch it if you're hanging around with cedric herring you better make sure it's dangerous to be hanging around with your character keith ford lived on the same block as willy johnson he knew he was dangerous he knew he was a gang leader right by contrast my client and his were what were called neutrons in the neighborhood they were nobodies nobody to be afraid of so it didn't matter whether mr johnson got threats at that right when he got into the emergency room versus threats once he got into the hospital room and there was no dispute that he was receiving threats because he already knew to be afraid of mr ford he knew that he couldn't protect his family against mr ford but he could protect his family against these neutrons mr johnson mr kirkman and mr cow so that's another way that the courts credibility determination was not reasonable it took these collateral matters and made them into something bigger than what they were of course there was going to be impeachment on willie johnson he's testifying nineteen years after the fact nobody is going to get perfect but what the court was supposed to do is focus on the consistency and the substance of what he was saying rather than these trivial matters the last way i think his credibility determination was objective le  reasonable was his failure to try to reconcile the testimony that was given and the way this comes up as he says again mr johnson was so inconsistent he said he didn't want to put keys ford's name in it because he was worried that  of what mr mr ford could do and at the same time he wanted to go ahead and take care of it on the streets and the court said those are just that i can't reconcile those two things but the court actually could reconcile them because they were clearly reconcilable what m johnson said which was corroborated by latrice buford his then girlfriend was that in my d compensated state i didn't want to pin this on keith ford i couldn't protect my family my friends had just been killed i didn't know what he would do so i kept his name out of it once i was better as he confessed to miss buford a couple of months after the murder i knew where he played ball i knew where he was and i wanted to take care of it on my own so these things again were clearly reconcilable but presentation or perjured testimony violate due process in the absence of some showing that the prosecutor was aware at the time that the testimony was false this court is not even acting on a fresh slate with respect to those issues of what the clearly  foreclose any relief for a petition in even if there were an argument to be made that the court should take the opportunity to try to articulate a new basis for haiti is really this case is not the case to do it because a state court made a dispositive credibility determination that petitioner cannot overcome on this record i did want to remember the court to one key i think dispute between the parties and one key basis for disbelieving the recantation and that is the fact that the evidence clearly shows that johnson while he was awaiting surgery in the emergency room plainly and unequivocally identified petitioner as one of the two shooters he identified him by name do rehearsal may have been allowing the problem he was lying at one time or the other correct in the fact that he told consistent large at one time severe pain and medical emergency of nine gunshot wounds say to police in those few moments duke is the one that shot me he said his name is duke he said this is what is car looks like here in the court of appeals where we're dealing with legal issues and i don't see that they carry any weight well that he bishop plainly cannot show that the state courts resolution of the credibility issue was on reasonable interpretation of the record made by the state court and petitioner has not met his burden here of showing that that was not unreasonable determination and bad so because the claim fails both in that factual grounds and on all the legal grounds that there is