two and only two questions has the movement shown that the factual predicate of the claim could not have been discovered previously through the exercise of due diligence and the facts has movement shown that the facts underlying claim if proven and viewed in light of the evidence as a whole would be sufficient to establish by clear and convincing evidence but for the constitutional error no reasonable fact finder would have found the african guilty of the underlying  showing is simply a sufficient showing a possible merit to warrant a further export exploration by the district court the analysis here may all be tail a cursory glance at the merits the inquiry at this level has been described as a relatively low bar not a difficult standard to meet and lenient mr stevens has no doubt cleared this relatively low bar st the factual predicate for the new claims could not have been discovered yes judge factor the respondent has suggested that these claims were somehow available upon the review of the of the file and two thousand and thirteen respondent assumes without any support whatsoever that the box of sixteen there's absolutely no evidence that the material was the same that we were that we received interview is there evidence that it wasn't this time the evidence that it wasn't the same is the fact that it was not that that a noble piece of information and if it is unknowable how does that affect your honor i don't have a way of knowing that information i i was not with the office and i was present during that determine if there is a way of knowing that at least to the best of his recollection knowing that maybe someone from the commonwealth would say well i was sitting there and you know i went through the box too and i saw all these things that problem the questions before the court now are not so with with regard to the box of twenty six t v serials mr stevens has been requesting like to now sort of move on to the question of whether the facts underline these claims i sat wish innocence under the standard statute and so i'd like to look at the claim sort of the facts claim by  claim in the st claim we allege that the commonwealth knowingly presented false testimony from doctor and suppressed evidence showing that the testimony was false the commonwealth at trial presented testimony that the victim's body was dumped approximately ten miles downstream from where she was eventually found the theory was that the victim's body was dumped somewhere close to where mr stevens doctors and that the body floated ten miles upstream to where she was finally discovered mr stevens st trial the commonwealth witness dr testified how this was possible explaining that even though mrs harding's body was weighed down by a cinder block and a chain it was feasible for the current to carry her ten miles upstream over the course in the twenty six team materials was a portion of the f b i report that concluded quote it was dumped within five hundred or six hundred yards of where her body was eventually this conclusion is consistent with dr confession to the commonwealth attorney after his testimony at the st trial that his testimony was appropriately carriage rides by the bridge in your state special agent david riley as i watch meaning stamped and misleading nonsense when testimony was requested at the nd trial dr be involved telling the counsel of the jury i myself have no direct knowledge of any specific event or direct observation relating to both the place and time in question the recently disclosed materials also include special agent david riley's investigative notes which indicate that dr warned him that at best my opinion was merely information speculation and that there were too many variables and no real conclusion could be dr billions testimony was critical to the common case against mr stevens the commonwealth theorize that in the early morning hours after hearing this harvey stevens took his claim if you would as let's posit the newly discovered information in the f b i report that seemed to be the focus of this argument so you are correct that i watch letter was plain we planned the brady claim in that claim one as an alternative claim that if the court didn't believe the commonwealth knowingly presented that false testimony from dr then alternatively the commonwealth at at least should have turned over is that the f b i report was available long before either of those examinations it was in fact submitted by the prosecutor to the trial court for consideration whether it constituted material that should five inches or one inch stack of material there's a reference without a lot of problems but there's a reference to a larger material being seen by someone at some point but it was identified at trial and not challenge to trial that this was the f  and they both agree it should not be disclosed but let's just assume hypothetically they were both terribly wrong and in fact the evidence contained in the report was  basis of a brady claim right in the mere fact that a that a judge reviewed it and got it wrong doesn't insulate the conviction from ever being challenge to on brady grounds the argument is his rights he was required to appeal the withholding of information that he didn't know what it was is a part appeal the judge's actor's decision and he knew his correspondence that's in the appeal of a trial judge is decision not to require the disclosure of information that i'm not i'm not saying you're right or wrong i'm just what do you what is the forty on which you and as has been referenced the been making efforts for several years to locate this f b i report presumably on the belief that it has information necessary to pursue claims and ruling that he did not have to disclose  counseled that and i don't speak of you i speak of the commonwealth generally properly argued in the state hey vs proceeding that the court was not permitted there to consider the overarching actual innocence claim that there was a procedural bar on that but one of the combo of argued in the state hippias claim was that state law did not have an analogue right and here perhaps properly you also argue that there are various procedure old statutory and other bars  which you may ultimately prevail that will preclude this court for considering whether he is actually innocent or not understand that and respect the commonwealth's ability to make those arguments  i certainly hope that the commonwealth recognizes that with the broad discretion it has in prosecuting and maintaining prosecution it also has a very high responsibility to ensure that it asserts those defenses in cases where it is appropriate to do so and so i hope that the fact that you were able to prevail in the state court and you may or may not be able to prevail in federal court does not preclude the commonwealth in the exercise of its broad discretion to consider what their propre course of action is going to show and that i believe i do your honor and of course the other remedies that years in situations similar to mr stevens have under state law is the evidence they believe shows they are that innocent to pursue those routes that are provided under state law that the executive branch of the commonwealth but we would submit your honor for both prongs under twenty two dollars or b two b mr stevens has not shown the other that he has been diligent because the events were available either at trial or no district court its argument simply that as we've presented the record and the history of this case it is clear from this record without any further factual development that  barred not only under the requirements of the one dollar and two dollars but would be barred under the statute of limitations in the court's records of discretion it would be appropriate not to encourage further pursuit of claim that would on the seen the error of the trial court's ways and would have given at that point the diligence in his argument i'm not adopting it right i'm just trying to articulate it to understand your response his argument is that your require  a petition or not you personally are required to diligently pursue the room available to you to get what you need right and so we all agree you know had you sat on your hands and done nothing until two thousand and sixteen we might look at that one could look at that and suggest that that was a lack of diligence your argument was well we've shown a lot of diligence since two thousand and thirteen maybe back to two thousand and eight when you start making various other requests but what he says is you haven't satisfied that st block and that was the response to that and your honor st of how case we know that the only physical evidence that connected mr stevens to the crime was a hair found in his truck we know that now the testimony that was used at trial is scientifically invalid and cannot be used according to the f know that the knife that was used to connect him to the wounds on the victim is of no relevance now because the medical examiner has said that the wounds on the victim were not in fact caused by a knife but instead a boat propeller and we also know that this investigation was led by a