constraints so new have plenty of time for your arguments in my view but we would appreciate record citation time and those are proprium and with that we will call mr maguire for the petition  the more your hours and learned counsel may please the court this case is primarily about many different types of suppressed evidence that were suppressed by a harris county were able to get federal subpoena power and were able to access some of these records that's why they were not it took sixteen years to get the thing resolved and take court did it not yes when i was not involved in that i don't know why it took so long i believe it was we've exhausted some of these facts additional facts came out in federal k b s that or intertwined with the facts that were presented in the direct appeal from mr dennis that further bolster that claim prosecutor had taken over from mr rosenthal promised to comply with brady and said he would in the judge ordered him to comply with brady and that was not done in a variety of different instances primarily concerning mr  yes your honor now did you get a french report that they were not provided that often report was not the policy of policy of harris county d a s office to provide it they would let you look at it and make notes of it and then you would have to in effect for b five days before guilt innocence started your honor and that i understand that three weeks before the punishment phase trial guilt or innocence was not the big issue in this case was a contest to drown her but i think th strongest case the most critical issue as a punishment right but i finally obtained the foregone you know via transcript it took me about six weeks to actually get a copy of it because i had a request from the court of appeals know mr elvira's name did not know the informant david bold bears his name despite asking for that information repeatedly and without that information you could locate the case among the s of bribery cases  is for example his federal sentencing where it was finally disclosed that he was a long time h p d informant was not until july of one thousand nine hundred and ninety nine after all direct appeal and status filing deadlines had pass i correct that the that the district court didn't consider this in terms of lack of notice of these other witnesses these other these of because as i recall his i've got a copy of his opinion here but as i recall it he he was concerned about terrorists for the same reason as a new trial judge was which was the fact that he had signed a contract pertaining to another case and had completed is informant work on that case so it didn't affect dennis's case that was th case where you had a witness who had criminal charges dismissed prior to trial that was not disclosed and the supreme court held that that that the failure to disclose that violated in arsenal's confrontation rights ruling that the failure to disclose the contract and the dismissal of the felony marijuana charge for mr dennis his trial was of no moment and that c c a ruling and also judge lake's ruling that was that was preserved exhausted litigated lost and the reason that c c a said it was lost was because the conviction was not admissible under texas state law sect texas rules of evidence because it was not because they were not convictions of course that finding violates doherty be an arsenal because it's admissible as impeachment bias of that witness who mr ball derose was a critical fact witness for the state on the future dangerous before the witness's testimony even if it's dismissed is impeachment bias impeachment evidence and you have a confrontational right to confront that witness with that information that's why it's required to be disclosed  was there any reason why this attorney could not have told then us that is client was a long time informant i don't know that your honor i tried to interview mr money or he passed away many years ago i tried i spoke to his wife who's a retired judge and used and tried to obtain his case file she said they had disregarded it years ago because he passed yet but the question is not what you could have found out it's a question what found out when he was making a motion for a new trial right that assumes mr moneer would actually disclose his client was an informant well that's why i asked started out by asking you the question is there anything you reason you can think of why he wouldn't have disclosed that well a lot of reasons your honor because he's representing a long time informant which he said he's been doing since one thousand nine hundred and nine when asked by the police to represent their guy well that's my and that's precisely my point i'm saying if you're saying the police are suppressing this they promised to do and those counsel were present during the motion for new trial hearing and they did not volunteer or correct the record or disclose the fact that mr boulder is was a long time h n ongoing relationship with us in police department he denied in fact that he had had any charges dismissed recently that mr dennis trial brady suppression get leo suppression which we also have here false testimony left on corrected by mr benson his county d a during the motion for new trial  banks shows that if you establish a brady claim that establishes cause and prejudice for the procedural default or magically well your honor i mean that that's what the holding of banks is that if you establish a brady claim citing banks that also simultaneously establishes cause of prejudice i mean don't you have to show that that occur even before the state was not yes but but the thing was pending at the court of civil appeals court of criminal appeals until the early two thousand right spy because that took sixteen years so the fact that they couldn't but they didn't they found this out in one thousand nine hundred and nine they would have been able to file his counsel would have been able to file some supplemental pleading or whatever in state courts wouldn't think it would be the time board at that point i believe  if it was sitting before the court of criminal appeals you know you can always i'll bet you anything the court of criminal appeal you file a supplemental brief based on newly discovered information and i'll bet you the court of criminal appeals is going t cognizance of that i'm not sure that they would in one thousand nine hundred and ninety you tell them there might be arguments about whether you had for the proper information but anyway ok we'll just have to look this home invasion that featured in mr dennis punched face so that information because it was disclosed so late it was a nine hundred and eighty two page transcript implication of the saying home invasion case and transcript was that he did not mention dennis and now there is was a suppressed material brady information and when you add it all i'm not clear what the law requires to his record here the state habe used counsel diligence but i guess rightly found made him a worthless witness and that was not available and you would you would literally have to find a needle in a haystack and century just stumbled upon it evidence if it would convince a reasonable jury that the defendant was not guilty or cohen the pinholes or doesn't apply in this case sure because the claim that we presented with all the additional information we part of it was the fact that he was a long time informant was not presented the fact of mr vinson misrepresentations to the trial court during the motion for the prosecutor mr vinson his misrepresentations to the trial court during the motion seven which is a couple of months after the penalty phase in that quote is pointed out in my amended rip the titian it is it's pointed out in my amended rip the titian and i  some parts exhausted in other parts and exhausted i think well these are very separate suppression claims they're all conspiracy separate answers on let you know because the state pointed out that you did trial counsel did practicable for him to pull a nine hundred and eighty two page transcript while he's preparing the beginning of a capital murder trial and digest that information and then investigate and interview witnesses further locate them and interview them so as to develop this information it just simply was not enough time which is why they asked for it six months before and why mr vinson said in january one thousand nine hundred and seven actually it wasn't clear to me that they requested the trial transcript at all until after the trial had concluded well believe mr odum said at the time that his investigator mr downey i believe this is in the motion for new trial hearing when he asked for a continuance of the trial in order to investigate the boldero information that they did not have enough time to adequately investigate that he didn't he did not ask for a continuance between the time when the state gave him the often to report in the case because at least the state says that because he had that defense counsel trial counsel it had a bunch of continuous says before that all of which the trial court had granted and yet in disclosed can you tell me where that is in the record or you can think about it you your red lights on yes ok thank you for the court likely to provide that when it is is it would have it would be help extraneous opulence and rd dennis is not pointing to any supreme court precedent that would indicate that the c c a unreasonably applied brady turning st to what was raised in state court dennis raised two separate brady claims the st allege that the state withheld evidence that bears ready had charges against him dismissed and the nd allege that the state withheld evidence that had a contract with state in an unrelated case information presents and again as as judge jones noted this would be barred under penalty because was not provided in state court and therefore doesn't go to the d d one determination of the adjudicated client and this is indeed the same plane that was played as the same claim and there's been no argument that it's an uneducated claim in the federal district court or that bank should overcome any default of that on the jeep good point so with regard to that it is barred under pin holster however it should also be noted that the c c a knew had at least had an formant contract but it determined that because this informant contract did not give him any incentive to testify against him is it simply would not have been material under brady and the c c a did not indicate that the extensiveness of his informant relationship was was necessary to decide this case they simply look to the fact is he getting a benefit in this case and nothing in the sentencing transcript that dennis now provides disputes that fact in materiality course what they're saying now is that the suppression continued after that to the extent that they were unaware that bob harris was a long term informant as mr mineta here told judge in a house a couple  years later yes and it appears that now they're the concern is simply the extensiveness of the informant relationship however i think the c c a made clear that that was not the dispositive question that was before them as well but they didn't that is she was never that aspect was never presented to the state courts at all that is correct the length of his informant relationship and the the extensive use of that relationship was not presented in state court and evidence of that extensive relationship was not presented in state court and therefore it can't be used to consider the reasonableness of the c c s determination well i thought but the question is whether it was suppressed from  minear would testify that there was a contract in the conference in terms whether was going to be fulfilled and so it defies credibility that they had not talked to mr munir about bulger's informant relationship with the state at that point or that with due diligence they couldn't have asked questions about the sense of miss a ball there is informant relationship and so i think at that point we believe it's been a subordinate is no exception but to the extent that dennis is now arguing banks this is where i i think  ends touched on whether or not banks would be cars would be coextensive with suppression i don't think it would be coke sense of here because wall trial counsel did not know about the fact that that she's been told there is was an informant clearly counsel at least knew about an informant contract and was at least in contact with his with his attorney about the fact that he was an informant so in that case there was the suppression did not cause any procedural default because with due diligence they could have asked baltar's attorney about the extensiveness of his relationship or said would have been much better if the da just fessed up that originally right absolutely i i don't dispute the fact that it's certainly not ideal that that this informant relationship was not not disclosed but again that's not the question here the question here is simply whether or not the evidence that was presented to the c c a for this white unique a did claim was material and more than that whether or not there were terminations that it was that it was not material was an unreasonable application of federal believe i have and always cite for that as well and just said for anything i say i get immunity for burglary they told you that anything that you say you're going to get immunity for being involved in that burglary correct and what is your understanding that that means that maybe i won't get charged this is  wares and everything else would have been punitive what the jury heard was that all there is had a significant incentive to testify in favor of the state because he was hoping he would not get struck a little slower yes your honor ok  the the jury heard both gary state that he had committed this home invasion burglary and that he was hoping that in exchange for his testimony he would not be charged for that burglary and he was extensively cross examined on that point and he and he actually he admitted he had never been sure he did admit that he had never been charged and testified that he was a fantasy residence that was not presented at dennis is trial but it goes to the lack of credibility in his denial of committing the often bears his name in the criminal report i believe it was i came from the office offense report that mr odum was allowed to view before the trial commence i'm not sure if you those were in the offing support i don't i don't know if they were they have they made available to him at all but they they could have been available five months before dennis is trial and therefore they were made publicly available and they were available for inspection and to the extent that this would have in any way been been exculpatory or impeaching st it's he would not testify he would he would invoke the th amendment if you was asked to testify because his conviction wasn't final yet so the state was trying to get from going to testify and lawyer said no and dennis provides no argument as to how he would have therefore gotten f report and then the jury would have had in front of it a written confession in which read all the dennis talks about david boldero into cuban setting up this home invasion and it would just further corroborated all the evidence  names dennis it is not it is not named us it does however say david told us that he has two cuban friends who are jewelers and they have been watching this man for a few months they have told david that he carries a large amount of diamonds around and he keeps them at his house the cubans knew what time the man was coming home the jury heard that were all that dennis had committed this crime with his brother and that when all the dennis was a human and i think it's that's not in the compression that's out there a says testimony right the fact that you were just quoting no your honor that is futons written confession of for guns confess and i think the fact that it can be confused with ball there is testimony highlights just how corroborative this would have been if they had brought food on to testify in this written confession came in it would have corroborated everything the ball there is said and would have three enforced to the jury that dennis was in fact and were not  believe it not directly but it certainly would have corroborated substantially corroborated and certainly would have corroborated to the extent that there were cuban tinu about the diamond business that's correct just runs in and i think it on trial transcript i think because it was publicly available it was not suppressed and because this clearly would have backfired if it simply was not material and then finally it is again under under de one because it's never been pled as year before before dennis is trial and and so there would have been a transcript or yes your honor and and dennis present that transcript as an exhibit to his amended petition should be dennis could have gotten that in three weeks but again and this goes to whether or not there was due diligence on his part of finding these transcripts he didn't ask for any investigatory help from the court to let the court know i need another investigator and the court this is trial counsel for not seeking investigatory help if you need and so i think it's clear that with regard to court do that i think that this is i don't know if i have no respect for this one your honor i think it is well into to the pre with regard to the the due diligence requirement under brady clearly there was due diligence exercised here in a i'd like to also turn back to the fact that in addition to going well these crimes occurred a mere two months apart they were clearly orchestrated by somebody that had an intimate knowledge of the diamond wholesale industry and they were both armed robberies that targeted diamond wholesalers that were linked to remold and dennis march of wholesalers that worked for the same company he worked for and then they also heard during the guilt innocence phase that he had a connection to this mr suge the man that he had killed i feel tennyson's and he has this clear almost modus operandi of seeking out when these diamond wholesalers are coming back with their inventory because there was testimony that i think mr suge had had just returned from a trip and then there was also testimony that he was targeting mr o'hanlon when he returned from the airport because he knew that he flew to new york to get his diamond the victoria every thursday night so i think the jury was entitled to believe boulder is by saying these crimes looked eerily similar there's clearly some pattern here and i have no reason to disbelieve  this witness at this point and that's likely the reason they believed him spite him saying i have an incentive here what was the st point at which trial counsel for dennis ascertain surprise clean raised on on direct appeal in the c c actually made a ruling that he did get timely notice to investigate that all things and that that factual determination is still entitle to deference here and in turning again to what the c c a ultimate determination was that this informant relationship would not have been material under bagley and under under brady again dennis points in a supreme court case either now or in the year two thousand that would indicate that that is an unreasonable application of brady ok as i apprehend petitioners argument his can hit what he says here is that the state suppressed the evidence was a long time informant and that he did not raise it or counsel did not raise it in the state court because they didn't know about it until this council got involved and that under the bank's case this provides it basically mirrors a cause and prejudice and overcomes the procedural bar yes your honor i think that appears to the judge lake pointed to but that was a different claim that was the claim that all there is actually did receive an incentive to testify against dennis judge lake said to the extent that he's arguing that i find that the faulty because it wasn't raised in state court and then dennis raises banks t even you know take that take that as our tuning argue window that that is the of the law what does the bank's case say about the situation yes your honor absolutely and if this were under banks taz would with with harris county and it defies credibility that l accounts will either did not or could not have asked what the extent of that relationship was and under banks the suppression occurred throughout the state a g s process and that was why be it with suppression because the suppression because the procedural default it did not hear because in effect a very similar claim was raised on direct appeal that bald there is was an informant because he had this informant contract and for that reason banks would not apply however materiality and prejudice would be coextensive here because there's again is no materiality because it was already impeached on the fact that he had an incentive to testify in favor of the state to avoid a charge for a home invasion burglary and the jury still chose to believe him likely because what he said was so corroborated by the similarities between the underlying capital often and the stra dennis again this was not raised in state court no argument under banks was presented in district court to overcome the default of that claim and again it is speculative conclusory and belied by the record as well there is his own attorney in the sentencing hearing states that bulger is never received a benefit for testifying against  are there definitely was a deal there was there was there was a benefit conferred so that's that's it that's really a different case from what you have here well here relationship between the state and their witness but as a defense counsel surely you support the texas procedural rule that says you can't introduce dismissed charges well that might be true under the rules of evidence  honor but there's a constitutional confrontation right that trumps the texas rules of evidence as found by the supreme court in davis versus alaska where you have any i mean i thought i had heard most rules by this point in time   state law in alaska prohibited getting into proper juvenile probation records and the supreme court held that that state evidentiary rule violated the confrontation right to impeach a witness who had had favorable treatment from the state i guess i didn't and i mean i looked this up in your pre fire speaking and it appears on page sixty two so in any way that that was i didn't understand the importance here attaching point well i mean this is the direct appeal counsel raised exactly this point on davis feel aska in their motion for reconsideration of the c c a it was also raised during the motion for new trial so this was presented to the state courts and nonetheless the c c a cited the texas rules of evidence as to why they could ignore the confrontation i didn't see that argument in your brief set off but anyway i'll go back because you were arguing at all in terms of suppress evidence i didn't think you were arguing it in terms of the state court on reasonably applied governing law but but i'm sorry we you know i may have forgotten this or you know were  fundamentally altered the exhausted claim that was from the state court and there's cause for the default of that because the state suppressed all this information regarding mr boulder's  status as a long term informant judge and a hose a found that he would have both barrels would have been found to be a wholly worthless witness because he was a corrupt informant who was out committing crimes while he purportedly is acting on behalf of the state well i certainly understand that but how can you impeach a fellow any more than by saying that he's already he i'm testifying here on the stand because i'm hoping to get a better deal from the police and everything all the surrounding circumstances strongly suggest that he is testifying about a a crime that was planned to involve a diamond dealer and be a diamond dealer a previous connection to the defendant in this case i mean what could be more impeaching to the jury to know that he's a bad actor but on the very circumstances here well the fact that  was a long time informant right well because he wasn't sentenced in that colloquy until two years after the trial here that's correct but also the fact that he was a long term informant would've shown that by their wrists was committing crimes while he committed the set up the home invasion robbery while acting as an informant according to his own test no there was the only witness presented at mr dennis trial linking him to that well i guess it's missile and that's circumstantial that there's a link there  to determine in this case your honor we believe the issue is debatable and because these issues are debatable we believe c l a should issue and we could further brief the merits of this claim  you know we i'm very sorry that i'm probably might have granted a c e o a but what if you if you well we've got the record and we've got a ninety page brief well your honor right now the court has jurisdiction maybe we should retroactively grant a c away since we've heard the appeal or is there more that you could what more do you think if the court feels that these claims should be including all of these options ninety pages of pretty full i mean you must have asked for a couple of you know amendments to get it that long yes we did we did now that all this information is finally come to light despite the state's obligation to disclose all these brady issues nd is sent ultimately sending back to the state court yesterday