testify about his recantation the facts of this case are well known to this court it was here in two thousand and eighteen basically what we need to talk about today is whether this case should go back again once more to the district court for an opportunity for the finder of fact to decide ever had an opportunity to assess and determine the credibility of m a's recantation and that's because no court either state or federal had ever passed on that credibility that or made a decision about it so this court sent it back and we had a hearing we had took a lot of evidence and then at the end of the process judge joseph issued a decision but it's our position th judge joseph jumped making a factual determination and went directly to the nd component of the actual innocence test to assess the whether  a reasonable jury could still find mr arnault guilty without taking a necessary step in determining the factual predicate as to whether or not and they were telling the truth say but here are the issues with respect to how a jury would evaluate it correct judge in this particular case and these unique factual circumstances are way way way is that what  requires the court to do an analysis of the totality of the evidence and make a determination based on that as to whether a reasonable juror would have doubt as to mr arnold's guilt nowhere in judge justice decision does she say as a matter of fact as a fact finder i do or do not believe the recantation and that is the missing element in this case i understand that judge joseph did a comprehensive evaluation of the evidence before her but she never said as a matter of fact whether the recantation was or was not credible and this appellate court cannot assess undershoot the actual innocence test because this court is not imbued with the power to find facts it doesn't have the ability as a fact finder to determine whether im a justified credibly at the recantation effectively this case is no different than when it was here in two thousand and eighteen but for the fact that we have had testimony from may it's still impossible for this court to say whether it step two i don't think all jurors would be required to discount the trial testimony so i'm going to even though i believe he's innocent i'm going to deny really  is that the the path you think makes available yes i think that it is the responsibility of the finder of fact to make a determination isn't can you point us to cases that have followed those two steps in a similar way to say ok well i believe him but i don't think it's your no i can't frankly the fact of the matter is that this is a very unique set of circumstances that an actual innocence as the i'm sure is aware is a rare occurrence anyway but then even a subset in which the only inculpatory evidence against the defendant is the testimony of a complaining witness makes this case unlike many other cases but we can tell from the split decision itself that it says that there is supposed to be a determination of what the evidence is and then a probabilistic determination of how a reasonable  treat that evidence so we need to know as a threshold matter what is the evidence that's what the the district court is supposed to sort out and then once we have that threshold matter of what is the evidence what is the totality of that evidence make an assessment in order to den know whether this is the petition or concern mount the slip bar i think it's important to remember that this is here on an appeal and the review of hay vs decision is the novo and this court cannot by itself say whether it believes or does not believe the  the purpose of this appeal is to get an opportunity for the district court to find those facts to allow us to then process the actual evidence your landscape through the shlub standard we can't just recantation is credible we can't just presume that it's not credible we have to have that's why we have finders of fact to make the determination and the analysis is markedly different if one is to say from a standpoint of a fine or a fact says his recantation is credible the analysis is remarkably different than if it's we don't know whether he's credible or not but a juror might not believe  but i think it is relevant here so the difference in the distinction is that judge justice was serving as the fact finder not as a reasonable juror but as the finder of fact at that evidence you're hearing ever present the respondent here this is as we all know and i'll just say again this is an actual innocence claim but in the gateway context and with that in mind very simply the two points i want to make are that the district court did with this court asked and did it correctly incorrectly applied slip and then secondly i want to just quickly address mr arnold argument on appeal and why it's inconsistent with show up where i think the kind of the confusion lies st off what the from the hearing and make findings about how that reliability what make findings about the reliability of that new evidence and how the recantation might affect a a reasonable  after the evidentiary hearing in this case where and they got the chance to air his side of the story in an adversarial setting just like schlepp requires the district court concluded that the new evidence simply was not reliable enough to meet the schlub standard and that's exactly what this court directed the district court to do in fact i will just say that the district court expressly stated and found quote the timing of the affidavit and mays lack of initiative in seeking to exonerate his father seriously undermined the reliability of the evidence throughout the district court's decision in this case the court makes statements like that  and where i think we start to get into the issue in this case is is that while the district court from the state's perspective exactly what's left requires of it the district court did not use the magic words that mr arnold wanted which are i find em a not credible but the fact is that that's not what's left or this court has required when applying schlepp to these types of cases arnold's argument on appeal really comes down to an assertion that certain semantics are required here magic words and they pursing out a credibility finding independent and separate from applying that finding to how it would affect a reasonable juror and i would submit that that's not what's left requires what's left require is is for the court to evaluate the reliability of the new evidence and determine how that's going to affect a reasonable juror there's no requirement that that has to be done separately that that has to be the magic words have to be used when it comes down to it what i think arnold's argument on appeal really does it misses the substance of the schlub standard and i think it's his suggestion is particularly unreasonable in a context but as this where we have a recantation case we have one individual m a who has said two can fleetly different things two competing pieces of testimony and to say that the district court had to come out and express please say thumbs up credible or thumbs down not credible is simply not realistic and it actually it's it invites kind of arbitrary and artificial factual determination what the district court did here was much more nuanced and precise and consistent with what slough requires which is a larger evaluation of the overall reliability of this new evidence in the context of all the evidence at trial at the hearings and determine whether it meets the what standard is it reliable enough so that no reasonable juror would convict  i think the last thing i want to touch on a little bit is that i think that arnold argument what what essentially is the is the basis of of arnold argument is a failure to acknowledge that the court still made very very clearly assess the reliability of this evidence the court just did so in a way that phrased it and then immediately applied it to its effect looked at its effect on a reasonable schlub standard we've got to lose the same witness giving to flatly contradictory sworn versions of the same test if you imagine circumstances where the judge could say now i believe th is such that the jury would have to believe i could imagine it i don't know of a case where that has happened your honor i don't have a of the cases i looked at the cases in this court i didn't find one and i think it is rare in this three pm patient those are all things that undermine the reliability of the recantation i think if you had a situation where you had a lot of evidence that was very different that the timing of the recantations seemed more reasonable that the that there are facts about the trial testimony or that the trial testimony was less reliable i think that all would maybe tip the scales more but what the district court found here is that that and they simply did not after someone else initiated the recantation so those things the court here found it was not my reading of the discretion is that it really wasn't that close to call that this evidence did not  is not simply is not reliable enough to meet the schlub standard and get around and create an equitable exception to the statute limitations and and and we agree we think we think the district court actually did a really nice thorough job in this case and applied slop exactly the way that it should be applied and that no magic words are needed in that and that's all i have unless there's additional questions i think i will just rest the district court is the one that finds fact the district court has to tell your honor is the appellate court do you believe in the district court decision no where says i believe in i don't it says repeatedly