bradford i long with several other volunteer attorneys representing appellant thomas rhodes who as of today has been incarcerated for more than twenty one years we're asking the court to reverse the decisions below and grant mr rhodes hey b s relief we're in the alternative and at a minimum allow mr rhodes to present his evidence at an evidentiary hearing this case prevents an important issue that appears to be one of st impression at least in the th circuit about how we deal with a shift in the scientific evidence particularly when the original flod understanding presented at trial reinforced and was reinforced by what we now know to be objectively water temperature evidence our position is that the constitution leaves room for relief that the introduction of this evidence undermined the front fundamental fairness of the trial that's the evidence that the state presented through dr mcgee whose testimony has twice le the promise of i agree with that your honor to directly answer your questions question about what about the case that that you're relying did they did they involve files or flawed  right and prior evidence and i apologize for interrupting your honor but the import there is the court reach that conclusion after an evidentiary hearing which mr rhodes has never had and let me put this evidence in context if i could for the court because it's very important to petition the minnesota supreme court and that but he got he got to have a denture hearing on the progressing regret progressing views of the scientists on this question he did get an evidentiary hearing on different evidence relating to the forensics of drowning which is different than what the articles here present the same point it was just yeah you didn't have that those part the two particular studies you like now weren't there for that hearing just the just violations were that where the district court stopped us as to be true which is clear and convincing evidence that but for these constitutional learners no reasonable fact finder would have found the applicant guilty of the underlying offense judge's report and recommendation that i'm going to consider what these experts say but i'm also going to consider the affidavit of dr me disagreeing with that that merge is such a way that prejudge is the merits without even getting there because twenty to forty four is a procedural gateway that assumes that the petitioner can prove the fact as true and when you when you couple when you couple the fact that mr rhodes had no ability during his trial to present evidence that there was a scientifically valid alternative because of the bruising inside the neck with the objectively for water temperature of events in our view that we i would urge you to read justice sanderson's dissent and i'm sure you have in the two thousand and twelve decision which summarizes the other evidence and he said it better than i can if you take out if you take out the internal haemorrhaging and you take out the outer temperature of n n c so now we are left with is weak governance of motive and very weak evidence conflicting witness testimony regarding relatively innocuous conduct by roads  facts and put in affidavits that if taken as true unproven would show that no reasonable fact finder would conduct mr rove's under these circumstances imagine back in one thousand nine hundred and eight the jury heard no conflicting testimony about the internal injuries on jane rhodes neck what is that jury to do when they hear the state's medical examiner say this gentleman choked her and the defendant has no ability to rebut that with the scientific testimony was flawed then you have relief in our point is we should at least able to cross examine dr mcginn in light of this new evidence we should at least have the judge hear directly from the that this gentleman lied when the jury hears that he lied that's a big stretch from my understanding of the facts well your honor i wouldn't offense expert agree that the body wouldn't have conviction here in what was the testimony and that i thought all the experts again agreed it wouldn't it wouldn't if she had been drowned in forty feet of water she wouldn't resurfaced in thirteen hours i respect your honor i disagree with the state's expert testimony at trial and when he was asked for the basis of that testimony he said the biggest factor is the temperature he never got to the other factors and the temperature now we know to intentionally killed his wife and both of those now we have we have evidence to rebut those and not only the argument made in closing at trial i'm sorry was that the argument made in closing at the trial ye s the state argued that dr mcginnis testimony established that the internal bruising hemorrhaging on the victim's neck had to be the result of compressive force and i just want to point out one other thing the magistrate magistrate jordan report in recommendation pointed out accreditation is in our experts because they said this could be the result of natural drowning the point of the experts was not to show have a fair resolution based on the actual facts i'll reserve the rest of my time for facts but i do think a brief description of some of those facts ties in very clearly and really illustrates the legal flaw that brings us here today it's wrong to assert that dr mcgee testified mr rhodes choked his wife that was not his testimony at all you know all candor in all fairness his testimony was there was some pressure applied to her throat that caused these neck ha and when he testified when he was asked is it possible that it was a hand of the throat he said yes it's possible you not say she was choked you not say she was hit in the throat his testimony was properly limited in that way but more importantly what  testified to about those haemorrhages is that they were in the soft tissues overlying the neck muscles not in the neck muscles but in those soft tissues jansen in his report based on a study of one elderly gentleman who drowned was that there can be haemorrhages in the neck muscles he very clearly talks about haemorrhages in the facial of the muscles themselves and he postulates that from struggling during the drowning process so jansons not even talking about the same hemorrhage as seen by dr mcgee when he conducted the autopsy on jane r one sample there was wasn't any other expert testimony on there being a separate cause from external forces there were there was testimony what i mean about that is their assessment about the other injuries juror had possible that was done by hand and now being here in a federal habeas case mr rhodes wants to involve the federal court in that factual dispute and knowing of course that to do that they have to identify a constitutional claim they have identified a due process claim and this leads me to my nd point about the legal claim i would ask this court to hold that in a dollars to forty four dollars b to be to gateway issue that that constitutional error that has to be identified as a legitimate constitutional error even accepting everything the applicant it's not sufficient it should not be sufficient to just simply say due process so what do process claim do they have have they alleged that the facts provide a nexus to a finding no precedent that used the word finding i don't understand there i'm sorry i was a poor choice of words are my point is that in order to allege the constitutional error necessary i understand that you're saying fraudulent you they are now taking on their assertion that there should be no i misspoke or my point is that simply by alleging a difference of opinion they have not sufficiently pled it constitutional error for this case way it can't be enough simply to say due process and that the human as court the th circuit recognizes as much you know that's the whole battle of experts portion of the human as opinion which is really interesting to read that a change of opinion and a difference of opinion additional opinions is just standard litigation it's not a due process violation even if that difference in opinion produce with a different result that's for state courts to resolve because it's not a constitutional error in the original trial itself and i've asked the court to hold that for that conviction and we were attacking success of nd or successive twenty to fifty five if we're in a twenty to fifty five i would submit that it's even more clear from this court that well of course could be a stand alone claim you know as a as a gateway would i just simply think it's folded into the last requirement that no reasonable jury would have found them guilty except for the constitutional or is there a federal constitutional claim for flawed evidence that would that would stand up in a success of twenty to fifty five not that i'm aware of your honor  but there are certain there should be i certainly would concede that when the prosecution plays a part in that what if there is and if you look at the leak case it's fascinating i mean you know the u s attorney i mean the the state's attorneys there conceded i think they used the term superstition in that case i mean it's a back you look at that case and think what was going on there you know i mean that's a much different case than we have here in a federal conviction agree but that doesn't get that and get our hands around what the claim is i don't quite frankly know that there is a sufficient claim here your honor to get through this gateway right i mean the point is they want to say due process but they also come to you and say we know more about possible causes i don't know how that translates to a due process violation in the trial itself particularly where we're talking about different images and particularly where not one of their experts as the magistrate recommended has just proved what dr mcgee testified to and with regard to the water temperature evidence which was an assumption by the witness that was not disputed by the defense expert it would have made no difference in the trial itself so well what what would what would rhodes for have been considering if it was a federal cliff was if it was not in the state the state the state court considered actual innocence under the state's standards for actual in this right the newly discovered evidence that the newly discovered evidence test for getting through the statute of limitations and sta and innocence component to it and i'm sorry now if they had been writing under twenty to fifty five what would they would they would have been talking about what a stand alone actual innocence claim under federal law i think you t then there is this to get worse i'm sorry and then the step is surely get way before you consider the merits of the petition at all now in this case the merits is quite frankly not going to look much different than we are but this  science you know if we can say that about this it doesn't change the fact that there's this other evidence supporting the conviction and that's of course classic you know to find it wants to parse out individual pieces of evidence and attack it without looking at the fact that from you know how many days the jury in this case sat and watched all the evidence in one sitting and one entire context and made this decision the minnesota supreme court really twice has said that other evidence was more than sufficient as did the initial federal district court here that nothing about the water temperature again it's not the only evidence about where she went in the water and where she came out because there's evidence and the record it's forty feet deep where he told searchers she went into the water he used a very reliable landmark a water tower in downtown spicer her body washed up nine tenths of a mile of shore up the shore near the area where witnesses heard about that night and screams it's not just the water temperature that went into showing he misled the searchers and so again we can't pare out individual pieces of evidence when you're looking at that question of as he demonstrated no reasonable fact finder would have found him guilty if they had heard in this case testimony about the actual water temperature and possible formulation of a due process claim about difference of opinion later they have not even gotten to that point and certainly we agree with the district court's determination that there is plenty of other evidence to support the point here is because the scientific evidence necessary to put that defense on didn't exist at the time number two the argument was made that the janssen article is talking about different haemorrhages in the neck muscular as opposed to soft tissue that is precisely the type of stuff that can be vetted at an evidentiary hearing the source of that is the affidavit from dr mcgee that he put in in opposition to our federal habeas petition we haven't had a chance to cross examine one and the alexander alexander and jensen study was multiple subjects number three there was an allegation that i only have done is say the words due process without actually articulating what the violation is the constitutional violation for grounds for a heinous petition the response on the water temperature as we didn't know it was fast when we presented it and with respect the due process clause is not meant to punish the state for intentionally producing evidence it's intended to protect the defendant and ensure a fair trial in ten shouldn't matter in this context and lastly the characterization of this as a mere difference of opinion is inaccurate  new forensic pathologist coming in and saying we have limited the trial record and we simply disagree with dr mcginty what they're saying is in light of these new studies which now show that you can get internal hemorrhaging in your neck there is no reliable way to characterize this death as a homicide all of them say we would never have done that and if the journey had heard that evidence based on a reasonable doubt standard no reasonable jury would convict under these circumstances thank you for your a