i've reserved ten minutes of my time for a bottle your honour's this is the case we're defense counsel during a capital murder trial elicited from another witness evidence of a murder and inculcating the petitioner that never occurred the prosecution tried to clean that up on redirect so that the defendant wasn't the shooter in this fictitious murder but was somebody who was involved in arranging it and then the prosecutor seized on this evidence a murder the did not occur as her lead argument in support of future dangerousness that is that this petitioner was too dangerous to receive life in prison now we've raised substance of hay vs claims about these serious problems in the district court and he found that these claims were defaulted on appeal your honor and to the district court we presented two independent reasons that the district court should have reached the merits of the substantive habeas claims the first is petitioner showing of actual innocence under sloop v dello and the second was ineffective assistance of state post conviction counsel under martinez vs ryan now unless the court would like me to handle this argument in a particular way i'd like to turn first to martinez versus ryan because it wasn't addressed by this court earlier in this court has gone over the actual innocence claims in some detail but i'm happy to take it however your honour's would prefer well i'm not sure that addressing that by that is recorded by you henri man was within the remit and rule telegrams one this court did rule that the district court should address any of these non defaulted claims or in finding that the fault was excused that it should excuse that it should turn to all of these claims  preserve his martinez argument before this court first in his initial brief and then in his reply don't we have to find a window into or they don't call it a window a window into the claims themselves first so when the other argument  typical argument that you begin with you can do it any way you wish but i was just yes jesting yes i mean the other argument logically goes first well your honor i'd like to handle it logically then it will turn to that showing under slow persons dello ok and in that  district court we presented the affidavits of two of three people who testified against mr tell of us as at his trial we tried to bring those people for cross examination to the hearing as well these people we presented three categories of evidence first same panel here in the essential argument that you made was that you needed a hearing and we sent this back not requiring a hearing but suggesting that that would be a very good idea to get back to the district court  don't want to hear and the as i remember and you can correct me wrong if i'm wrong i was under the impression that these two recanted witnesses were going to testify yes r all the evidence that we could understand that but then you turn did you know about face and i just wondered what what changed it in your honor with that said i i wasn't involved in that particular argument i do just from reading the transcript i do know that the thought was that arguments were strong enough that the district court could have granted the writ on the record that was sent back down based on this court's opinion as for the second point your honor in having these witnesses there has been a step could have been that you knew that witnesses were not going to  your honor it's not that we knew that the witnesses were not going to come because many of our witnesses did come we brought at one gilks to testify and he pleaded the fifth amendment from the moment that we asked him his name we sought out soften off and we brought as well as the record shows more than ten different witnesses and different categories of evidence that go not just to the recantations but corroborating evidence so that we can take your honor is it your representation to us that you didn't know that the two witnesses were going to recant we're not going to be available for testimony yes your honor that's exactly my representation and that's why we call that very unusual i mean you sound like you're a trial lawyer usually one knows usually the lawyers know it's going to happen well your honor is at least as it is whether the witness will testify or not not  soon as we were granted that hearing we asked for discovery we marshal our evidence we brought witnesses and if i could turn to these three categories of evidence i think that will explain why it was uncut every lawyer who  us i think you hit the nail right on the head that the odd thing is that your whole your number one argument front of us what you needed a hearing and as i say i understand that that's on and we had the hearing we did marshal this evidence at the hearing we ran into procedural issues in terms of getting discovery that we think we were entitled to in that we needed we put on three categories of evidence and if i can turn to those categories of evidence i think it shows that mr telegu is did establish that there is sufficient doubt about his guilt in the underlying trial that that state conviction proceeding should have been pristine and i think as this panel acknowledged before there were serious errors that leap right off the page about what happened at a state conviction proceedings and the first category of that evidence your honor was the now we were just going through the motions judgments we arrange for edwin gilks to be transported to trial we tried to have him testify and importantly judgments he was also available for the commonwealth counsel to question that is even if there were as this insinuation by commonwealth counsel that he that mr gilkes would have put himself in testimony by confirming his recantation that is he would have endangered his plea deal he would have been subjected himself to a capital prosecution that would have been the case if the states counsel had asked him questions and said was your trial testimony to true or following up on this panel's opinion the first time was your recantation the product of bribery coercion or any other mis dealing so your honor he pleaded the fifth and it's appointed at the whartons insistence and over our objection your honor we also brought other categories of evidence that couldn't have pleaded the fifth but as other facts that supported mr coke's recantation we brought forward statements and live testimony about th supposed everhart birthday party and it was central to the prosecution's theory of the case that mr telegu was fired mr headrick at this birthday party we submitted affidavit showing that mr teller goes according to the birthday party that the the owner of the home where the party took place his girlfriend and two other people that mr telegrams wasn't present at that party now this is the sort of evidence where the district court reviewing it should have took it apart piece by piece and when he couldn't dismantle it he said it wasn't central to the prosecution's theory and therefore i don't think it wouldn't have made an impact on the jury but the cumulative impact of all this evidence your honor the fact that the recantations the recantations themselves the corroborating evidence all of this is what leads to the showing that mr teller goes was actually innocent or at least there's enough of a showing here that his state court proceedings should have been without a serious constitutional error now by way of the affidavits my talk about the district  is in support of mr tell his innocence that exists in this case because mr gilkes said not only what i said at trial was false the reasons i gave false testimony was because i was pressed pressured by the prosecutor the pressure from the prosecutor was that if i didn't help our i would be facing a death penalty and a conservative district of virginia that would be impossible to overturn but he also gave specific facts that undercut his trial testimony now the district court by by its own admission put this affidavit to the side this he said i'm going to give it little or no weight but all of the reasons for discarding mr gilkes affidavit appear on page twenty three of the district court's opinion and they include the following three points first gilkes didn't offer an alternative explanation why he was involved in the murder second he didn't say who drove the pennsylvania and third he didn't say and i apologize for this your honor but it were all the reasons argued by the commonwealth all of the reasons were argued by the commonwealth your honor and the third reason was that mr gilkes didn't say how he ultimately located site and the reason i turned to this this reason is in terms of a clear review of the district court's factual findings that first and really central reason that mr gilkes is affidavit was deemed unreliable by the dish report is simply not true in this record the district court said mr gilkes failed to say why he and hedrick traveled to harrisonburg to murder site but in paragraph twenty one of his two thousand and ten affidavit mr gilkes said mr hetrick told me that we were going to do a drug run in virginia and therefore i traveled with him district court didn't of the fit under the circumstance with your honor i think in a standard civil case what a judge would do this is not which this is certainly not but in a standard civil case a court typically holds the absence of evidence against the party who's responsible for preparing its absence now we've argued that the warden is responsible for the procuring the absence in this case i saw the district courts observe that maybe it was mr tele goods that pushed mr gilkes in jeopardy by having him even by even do we know anything about the circumstances surrounding but titian there's up painting of the affidavit some guilds and what if anything the commonwealth did around that court there after what do we know what is the record show if anything we do know judge davis because at the hearing the commonwealth tried unsuccessfully to impeach these affidavits by suggesting by presenting evidence suggesting that there were some sort of mis dealing in their  commonwealth presented the testimony of somebody who works at the prison phone records system to show that mr gilkes and representatives of the virginia capital rights resource center had a series of phone calls but if the affidavits that much is obvious when you're in you isn't just for the substance of mr gilkes affidavit but for the fact that he gave these affidavits at all he's a man unlike soften off who's and cosmic stan and we did what we could to try to bring him but mr killick has actually said to be released from prison in three years th commonwealth didn't it wouldn't be permitted would it under standard sort of ethical and professional norms to actually call the investigator to call the investigator who ok who spoke to bills under point or two three and of the rules of professional can i don't believe that they could but again your honor this is the sort of problem where if we had full discovery if we were allowed to develop our record we were asking for discovery and in fact that your owners are probably going to question me about the commonwealth could have asked for discovery as well and had we done this through normal channels and were able to build out our factual record we'd have answers to questions like that in the commonwealth would have been able to build their case as well so i think i'm sorry but so i think the bottom line with mr gilkes as i was saying is he's a person who has no personal stake mr telling this is case no professional stake he's got no financial incentive to do anything for mr tell it goes well it kind of does does because if i understand the record what the commonwealth saying is 's a standard that is difficult for me to understand but i think one gets from shoot and house that no reasonable juror would find him guilty beyond a reasonable doubt or that is more likely than not that any reasonable have a reasonable doubt now does this mean that we have to find that every reasonable juror would vote to acquit on the basis of this new evidence i don't think so your honor i mean much does it mean if it's phrased as no reasonable jur would have been able to convict beyond a reasonable doubt that's a quote that is the quote your honor and so with that said no it says no reasonable juror could so it seems to me that that we have to find that there is no reasonable juror that can evict i understand that that's a quote from s honor i know that in the press gallery what else are we supposed to judge supreme court says what the standard is we generally know and i have to follow the law but as a practical matter if there were holdouts on the jury there wouldn't have been a conviction and therefore  would have made a difference i do understand that's the supreme court's standard and of course i'd say the fourth circuit needs to follow the supreme court's standard but i also know that i don't think the district court followed that standard at all you're i'm i'm asking you what we're supposed to do now on the basis of your argument and honor the the answer is no reasonable juror if that's what the supreme court said that's the standard ok it we turn if it's ok with my colleagues to the martinez issue how did the martinez issue come into the case the martinez issue first came into the but with that said we tried to preserve the argument at every step along the way and the district court acknowledged that it was in the case the district court and not acknowledge that it was in the case but then held that it was beyond the scope of the sport's mandate during the hearing on and that's the only reason the court didn't give you a hearing on that's correct your honor and even when he there were there were two points there your honor the first is we asked the district court for a full hearing at the start i'm sorry it was but tina's decided after argument in this case of just before just before our just before i believe that the chronology is march of two thousand and twelve martinez was decided may of two thousand and twelve this court heard argument so there were about two months but our great order was after argument in this case the grave asked the district court to present argument in support of the argument evidence in support of our matina its claim the warden objected and the district court said i'm not going to allow you to put on that evidence if you argue that this is a classified section so the mandate will we are going that when the law evolves that is miscarriage of justice we argued and as as the warden in their opposition brief acknowledges they're not even taking the position that this was outside of the mandate will they claim that the the error wasn't prejudicial the district court did ultimately consider i have an alternative explanation for killing stephany sipe when in fact it's clear from the record as i cited that he provided that alternative explanation the district court simply didn't mention it or address it on the second point judge when just a point of clarification everhart didn't say that the fence counsel asked her to lie she said in looking over her affidavit that a lot of the stuff in there was false now i think this actually demonstrates part of the problem that we've had with the hearing we had an affidavit from w went to go speak with her in person and when our investigators went there are lawyers went there they were met with virginia state troopers so we managed to get her deposition at which point she said i don't know what happened when i signed that affidavit but in fact we presented evidence at the hearing judge and the state had to change an affidavit from the witness the witness that made corrections on and then came that witness came into court in just about all that testimony would you be telling us that we should realize what the witness said was and your honor i'd say that you should look at what the witness said because the witness the witness did say also that but i gathered from judge wins question it would seem to me your essential problem is this incredibly difficult standard and credibility findings by the district court on a number not and doesn't foreclose everything but if there are credibility findings on a number of issues and we defer to those for sure i mean it just it doesn't matter whether you think he's wrong or we think he's wrong he gets to determine credibility and in light of that it seems to me it's just a really very difficult road you h understand that there were factual findings that were you know asking for review under a clearer standard but there is also an overarching legal or i think an analytical error by the district court and that's something that i think this court can review de novo under wolf and that is that overarching legal error the overarching legal area church mots is that rather than conducting the sort of probabilistic holistic analysis that loop requires that is saying in light of all the new evidence and the old evidence i'm going to review this record independently house versus bell instead i'm going to determine what a jury would have done taking all of this is a hole because what the district court did your honor was i think he looked at pieces of evidence yeah but there was so much evidence i think that's really quibbling with the district court i mean you know i have a lot of sympathy with trial lawyers but i also have sympathy with crowd judges who is trying to analyze all of the evidence they had you have to do it some way you can't just just to use the example of the guilty affidavit what he did was he said i find these three problems with the affidavit and therefore i'm going to take it off the table i'm going to say that it's something that's not reliable no that wasn't the only reason he did it he also said that  where he was talking about you know given that there's no evidence of bribery coercion and miss dealing at the state has has introduced how are we supposed to consider the the  well if we can if we can start at that point what i would say is what i would say is and mr telling use acknowledge this in their pre hearing pleadings the burden was his the burden was his to demonstrate the reliability and so the burden was his to show the circumstances under which these affidavits were procured and he did not meet that burden mr gilkes invoked his fifth amendment right but the people who i'm sorry th at least one of them was physically present at the hearing when when you have affidavits and nothing more then the witnesses do not forward and then you have testimony by others to representations in both of those untested affidavits was that the reason these witnesses allegedly testified falsely a trial was that they were coerced by the commonwealth attorney who was present at the hearing who did testify under oath who answered every question put to her by both sides and who flatly denied those allegations and the district court having seen and heard that witness under the crucible of cross examination found her testimony to be credible and likewise mr soften off also sides that not only the commonwealth attorney had coerced him and made his promises again flat initially because they could have been the effort daves themselves could have been the result of mr dealing bribery and so from that perspective is that your argument that they did not or with evidence that would refute that that would affidavit were not the result of this when they've given sworn testimony in the trial and but they're not appearing here exactly so so under johnson and pretty much all of the other case law from other jurisdictions i cited i try to avoid string cites but i wanted to give the court some weight of the authority is that really courts look on these very  disfavor because of the language of the supreme court of virginia the sort of obvious opportunities for extraneous influence coming in and this court his side is particularly skeptical when it's a codefend coconspirator someone of that nature and that's exactly what we have here so the starting point is we look at these skeptically and use never came forward with anything to affirmatively show that we should be skeptical let me ask one last question in that vein because i i wonder if we should view these cases and i'm sure we shoot them individually this is this case takes on a very different atmosphere because of the almost has an international implications and you know with the different characters the one across the overseas and here is not  in light of what the at least this special circumstance is the international flavor i mean you've got people overseas and you don't expect them to come back i mean why would you come back and face possible who knows what even perjury in the first trial you could you didn't really deal with and i see every impetus for saying no i'm not coming back over here and testify that i live that first trial why would anybody do that well if you look at the the series of orders that the court entered but to get there you would hand them that he was misrepresented in that in the first instance that he felt like they actually were going to come back who would feel that they just didn't come while he at last you are implying that by that representation they were misrepresenting to the court something they thought was going to happen they didn't really think it i'm not sure that i'm comfortable stating it quite that strongly but i would note to the court that although the evidentiary hearing originally was set for june of two thousand and thirteen the record discloses that mr tulloch use did not make any effort to determine what to secure sworn testimony until september and so i would say he was not diligent in his efforts to secure the testimony of the witness that he told the this testimony and that would have been received in the same way or maybe some other means of those type of teleconference type videos or something that age it well i i don't want to suggest something because we always were concerned with how we would ensure that the witness really was siphoned off because none of us was at trial and don't know him and what would happen if he simply walked away when we began our cross examination but the problem is  we don't know and all of that was left to conjecture because mr telegu is never proposed to the district court precisely what he had in mind other than there would be some type of video two way deposition we're not engaged when we're not conducting the trial day or or the hearing there so we don't follow the rules here so if you get it into ben a s a deposition i assume and the district court granted him leave to attempt to do that just as the district court granted him leave to conduct the deposition of lateesha everhart and mrs everhart disavowed what was represented to be her affidavit so if we're talking about a holistic approach a whole list of represented to her she said something during the course of the deposition that mr tell it well mr telegu says counsel was inquiring something to the effect of it looks like my signature which brought counsel up short and he said what do you mean it looks like your signature and she expressed the view that that wasn't her actual signature now she did confirm that she gave an affidavit but what she said was that the affidavit that had been presented to the court and that she was confronted with at the deposition was not her affidavit because and i think this is the quote half the stuff in there isn't true at that point mr telegrams his counsel went didn't say it directly but you certainly are implying that she did not say that but i think that's the reasonable inference from what she actually did say which is why i gave an affidavit and this looks like my signature but this isn't my signature because and again i'm i think i'm paraphrasing but something to the effect of that's not even how you do an r or i mean she she was critiquing the actual signature and so i think the reasonable inference is that certainly there was some  question i'll just say that was some question about the manner in which what was presented to the court was shared in that circumstance and if we're doing the holistic review then it's reasonable for the district court to take that into account when discounting these other affidavits that have no benefit of cross examination and the only other affidavit that was touched on regarding the circumstances was mr malayo and he was  unable to really give any account for how his affidavit came to be missed the what does the commonwealth take the position that defense investigators are out  the commonwealth at every station and the united states obtain affidavits from calipso and offer factual evidence to dispute the assertions of the defend it so i'm curious to know whether your position is that that's different with respect to post conviction investigators who are paying affidavits from former trial witness that seems to be a symmetry that the law would not particularly look in response to the first at least in virginia as a matter of virginia law the waiver is narrowly construed to only cover that which is now says any disclosures which are necessary to answer the claims and more recently of virginia state bar has issued a legal ethics opinion that very strictly circumscribes the circumstances under which defense counsel are able to cooperate with the office of the attorney general because that's generally what you hear you're not out of the court so issues of privilege would be decided under federal state and they would but the rules of professional conduct for members of the virginia state bar would i would still  certainly assert it i can say to the court and more specifically to this case your honor my understanding is not that it was a defense investigator who procured these affidavits and and i may be wrong but my understanding was that it a member actual at least one of them was missed by for who's a member of the state bar and a member of the legal team here so i'm not certain but those individuals i'm not sure what mr tripp's status was at the time that these were prepared but my understanding at this point is that she is now a member of the bar and now a member of that firm so i don't is resting on the face of the affidavit and the absence of any suggestion of coercion etc and it's kind of sort of a shifting burdens kind of a kind of a situation is that i mean he well he put forward the affidavit and you according to his argument you didn't the commonwealth didn't point to anything on the face of the affidavit or any of the circumstances surrounding the that that information was not available to us because it was most certainly available through the attorneys he presented one of the former attorneys ms givens to try to rebut mrs ever harts testimony but none of the other individuals who procured so sorry hooper care those affidavits was called as a witness and again coming back to we're starting from a point of skepticism because of the nature of this testimony but in addition to that your honor i think it's important that there are factual allegations in here that report to explain why they purported testified falsely at trial but those allegations were flat lead denied by witnesses who were present and who the district court found to be credible and so when we're weighing live testimony that the district court was able to evaluate the people of the had never even heard of such a thing until he looked it up on the internet in connection with with these proceedings it certainly was not part of his job and he didn't know of such a thing again let me  judge was hard to overcome at that point to stand this up to kill him exactly so but beyond that again coming back to my point talking about the burdens the initial burden of burning going forward the burden to show that this new y could possible found about most of these things taken into consideration if i'm understanding the question correctly and so the question is if we take future dangerousness out of the gate way yes i think not your honor and the reason why is because the witness who did testify is the actual murderer and his testimony at the hearing before the district court was and i telling paid me money to go kill stephanie sight i went and killed stephany site and i came back and i collected the rest of my money and that's a joint appendix pages twenty seven ninety eight ninety nine so the fundamental tenant and and that coupled with and mr headrick was very clear and unequivocal reaffirmed all of his trial testimony the district court found him to be a highly creditable witness found that he gave the only complete and detailed account of the murder and that included the manner of death which is was the linchpin of the supreme court's finding that the vileness factor was satisfied because by giving not direction and understanding what the physical  consequences of that direction would be that evidence to the depravity of mind necessary to satisfy the valma factor under virginia law so the follow up if if the merits of the future dangerousness claim was reached and decided favorably to mr tel would your argument he's not entitled to any relief because of the well i think the question about the vileness versus the future dangerousness aggravator really animates the martina's discussion that's rather hoping you would go rather than the discussion and maybe the segue between those two points is that to the extent that this court's mandate may or may to the extent that this court's mandate may have encompassed martina's and i don't think i conceded the point i just simply said it was unnecessary to reach it because  hearing said it was so that it could quote properly determine the reliability of the new evidence presented by the petitioner and taking this court's lead and in addition at page seven hundred forty five of the joint appendix the district court said in an order the hearing is granted soley to permit the petitioner to present such evidence not presented at his criminal trial that supports his assertion that he is actually innocent so  several times stated the limited its understanding of the limited scope of the evidentiary hearing and mr telling us waited until the morning of the hearing to alert the district court that he also wanted to present evidence on his martinez claim that hearing the district court as reflected in its opinion was initially reluctant to hear that but ultimately permitted him to present the evidence that he said he wanted to present a virus given so i'm not sure that it's fair to say that is trick or didn't commit him things the district court was very clear as to what the purpose of the hearing was and that's what this court suggested the district court do in addition to that going to consider it in the alternative but not permit discovery on it well right i mean is that correct that's correct no discovery was permitted but those there was a request for saying yes and i think most of what he would if i mean there's no suggestion well ok but i take your point and i don't think your argument is specious in any way i think it's a good advocates argument but the point is seems to me we have a record that is incomplete under circumstances in which maybe the council should have been more diligent in alerting the district court  crazy to get it right and to be fair and let's just do it you know let's just do it what are the lyrics what was the representation about what sort of evidence they wanted to get in covering i honestly don't remember all of the what were their representation there was a representation of what they wanted for discovery but the poster all requests had morphed it into some kind of at the hearing ok first the district judge said no i'm not going to consider those that are and then a witness did testify that correct direct and that witness was miss givens who was one of the state  attorneys and the district court who said we blew it well who said perforate it's us well she actually didn't say that because i invited her to say that the representation was poor that they did not do a good job for mr tell accused and she did not say that she said i can only say i missed this claim that what you blew the one she bl but there i mean the cordesman earlier with the record there were numerous claims asserted in the supreme court of virginia i think it's important to bear in mind the framework in the supreme court of virginia which is there was a fifty page limit there at the time they've since expanded that but for purposes of so i think when we're talking about experienced specially trained to mean these attorneys are represented there are scuse me appointed pursuant to statute in virginia and must have special training and these are experienced attorneys and she con was an experienced attorney and she had done state he is in death penalty cases she agreed that she was combing the record for the claims that would most likely be successful one state he is and so when you're an expert and when you are reviewing these things with that trained eye certain things come to you more readily and under jeffrey time one of us writes a dissenting opinion we are effectively being don't require perfection even in these cases but in the fourth case we want to get it loose as we most certainly do and that's why we wrote we appoint specially trained counsel that's number no that's not the claim that's never been the claim the claim is not that the attorney was ineffective for asking the question and injecting something that actually he had successively moved in the money to exclude at least in the guilt phase the you're exactly and because of that and because ultimately this is a strickland claim or a certain claim once removed it's a double stricklin claim i gotz under martnez we have to put ourselves in the shoes of what would the supreme court of virginia have done with that particular claim and under hedrick versus the warden which we cited on brief the supreme court of virginia would say you can't show prejudice because there's this other fully sufficient aggravating factor which was affirmed directly attacked on direct appeal and affirmed on the direct appeal by the supreme court of virginia that was what was challenge you know being this suggest to you or maybe you do on one and it certainly can stand on one because we do have cases in in virginia reported cases i believe the grey case that some members of this panel heard yesterday there was only one statutory factor i believe that the jury found out about it but if we're talking about a situation where there is one viable one that is one not tainted by ineffective assistance or brady violation or something correct but there are others in the case that should not have been before that your other words what's the marginal cost to a defendant in a death case that there are two or more grounds for death well i think we talk owes the supreme court they've told us to assess that under sawyer that the petitioner must come forward with clear and convincing clear and convincing evidence the higher standard under somewhere that no reason that the statutory aggravator doesn't apply and even under the best circumstances as a as a substantive matter whether or not that testimony was rebutted doesn't make the aggravating factor unavailable it's not a situation where the an element of that factor couldn't be satisfied as a matter of law sue for example under atkins if the petitioner makes a proper showing that he is intellectually disabled it does not matter he cannot be he is not eligible for the death penalty but this is a different class of evidence this is just simply were bottle of thought it doesn't eliminate any of it another way an element might still be asking for the consideration of that factor but they would have rebuttal evidence which the jury would accept which the jury would hear and may or may not  with the representation about what the number one argument for future dangerousness is but i see that my time is expired and i and must the court has other questions of me i would ask the court to affirm the district court's findings and holding rebuttal i'd like to make four points i'd like to start with a procedural point about martinez one of the last issues that was discussed by my colleague just a like to dispel any notion that there were some sandbag with the district court on martinez in post hearing post re man briefs on remand from this court we alerted the district court that under martinez we had we were entitled to an opportunity to present argument never once demonstrating that there was cause and prejudice in post conviction counsel i don't have the date of that brief and i apologize for that but it can be found at the docket on the docket one twenty eight twenty nine to thirty so we filed briefs with the district court before that and then on the first day of the hearing we showed up and said your honor we plan on presenting martinez evidence the judge said no the warden said beyond the scope the judge said no and it wasn't until we made a convenience argument when we brought jenny givens to the stand jenny givens was post conviction state hey b s counsel that we said to the judge judge davis it's your point your honor we have the witness right here why make us do this again can we ask a question about this and then he reluctantly alatas to do that but we weren't allowed to develop the arguments or the evidence until i think she was our second to last witness at that hearing now turning back to ms givens of like to talk about the process in this case because there seem to have been the suggestion that this case was really about you are you leaving the ineffective assistance claim now if you'd like me to go back there try to say i wanted you to address what the state's lawyer said at the very end when we were discussing suppose you would have what your position respect to the use of this evidence with respect to one of the factors but not another yes your honor and so i think and i don't think it it abolishes the state's  vileness aggravator that the jury found provide an independent basis that sustains the capital sentencing because what we're presenting is evidentiary and constitutional problems with the future dangerous aggravator and on that point we've cited the brown versus sanders case by the supreme court where the supreme court was affirming a conviction there but it said if you can get the same facts in under another legal rubric that's not tainted then the independent  talking about tainted it's we don't know that the jury would have accepted your argument even if all that evidence had been in the jury might have still found that that that that factor apply that is that so it's not it's not in the it and i'll just add on the i don't want to take up a more your time i know i'd like to answer your question judge matson i don't know add there's that tuggle vs netherlands case which actually involved virginia state courts i believe it's the supreme court from two thousand and five there it's a slightly different issue in that and again they affirmed a conviction but there i think one of the aggravating factors wasn't viable and so the supreme court said in that particular case that it's it wasn't constitutionally permissible wasn't paid and it wasn't disputed it just wasn't a factor that could be considered by the jury under more recent precedent and so in both of those cases it seems it it is but i'm just trying to round out the b s and i don't know if your honor has other questions on martinez because i was going to go because there was a lot of discussion about the burdens and on that i'd like to make two quick points i mean the first is judgments we talked about the burdens and the burden isn't as high as herrera this isn't an argument that mr tell it was was actually innocent and therefore he can't be constitutionally sentenced to death it's a more reasonable than not showing that no reasonable juror would find him guilty the state the warden talked about how the burden was on television that's true but judge davis this goes to your point about hard working district courts and hard working lawyers i mean what we had was we presented these affidavits and this court raised the question determine whether they're credible or whether coercion bribery or missed dealing every time the warden raised some question about whether or matthew david was true was accurate was valid we demolish those claims at the hearing your honor and just to give you the example of miss everhart and to round out since your honour's had questions about it miss everhart submitted her affidavits where she said she was definitely sure that mr telegrams wasn't present at this party we went to ghost meet with her we were met at the door as i'd mentioned by state troopers and then she refused to speak with us so we got a deposition and that her deposition she didn't say ivan was at the party she said i'm not even sure it was my deposition because half the things in there weren't true and maybe mr gilkes my brother could have let him in through another door and he could have gone upstairs without my seeing so she equivocated there so what did we do in response we brought the lawyer who took the affidavit and she testified about its preparation and about the review we called the investigator who initially spoke with everhart and he testified during that initial meeting she said she definitely didn't see mr tele goods so there seems to be this question about whether we want to learn about it since you brought up that you did you also bring in the people that got the affidavit from the two co defendants yes as a matter of fact judgment and they each test fine they didn't but judgments if we thought that this was just about authenticating evidence then we would have put in that evidence was about something very different which is why the supreme court and you you know we're we were we were i think in the puzzle on how to deal with these affidavits that have now been that conde that are contrary to the testimony at trial and have now the witnesses have now refused to affidavits so it seemed to me that there would be eased some would be helpful to you grooving but by god they did stand by them at the time and they are true and they did so and whatever evidence you had with respect to that well you were able to put in witnesses that were there taking other depositions and judgment other evidence that's why what i what i was trying to explain to the court was every time an affidavit was questioned we present to the people we know for sure that these affidavits were questioned the state wasn't green with what that what they were saying your honor they were questioned as to their substance and their reliability but they weren't question there was never an allegation that they were a fabrication or that they were authentic and i will say your honor the person who dealing couldn't be on the part of the affiant but your honor there's been no evidence of that either and that's why al there's the evidence that they're not standing up for it now and that i'm pretty good evidence no it's not your honor and here is while it's not because you don't think it is but there's another point of view it is no your honor i'd say the reason that it's not is because there's an alternative explanation for why it's not certain that if you have two explanations for one it wasn't true and two it was true but they're scared yes your honor we have those two explanations but there is one explanation nation that it's just not true there's no explanation as to why he would give that testimony at great personal risk in the first place there's no you know to use judge jones as phrase there's no complete and consistent theory of why he would submit that affidavit then on the other side the reason you know the answer to the puzzle that we're offering is he was threatened by prosecutors he lied because the prosecutors though came in and did testify and were subject to cross examination and the district court credited them  have to defer to that finding and your honor this is where as i mentioned i'd had a rebuttal going on process the prosecutor was cross examination but we weren't allowed to take discovery we asked for basic documents notes you've got no documents in the prosecution at all we already got so we got we got we had the trial case file or there were some documents that were getting clued interview notes that did include interview notes your honor but then we asked for things like communications between the prosecutor and the u s attorney's office in massachusetts regarding stop and off we asked to use we asked for the u s attorney soften up documents related to the telegraph investigation so we asked other categories of documents that would have been necessary for fair cross examination is not your position that in order to be fair you had to obtain every piece of evidence that you asked for in discovery course this but but i mean this doesn't last i mean in every case that i've ever tried no party gets everything they wanted discovery and i've never tried a case where that was so and judgments that's all true but that's not what we're asking what i'm saying is as is your honor pointed out there are two alternative theories here on the one hand the prosecution can either attack yokes affidavit by saying he's just wrong he's just lying he's just making it up or they can say there was some sort of misty huling and there was coercion or something was going on and it's not really the truth as for that first that wasn't even suggested in your honor if there was even that allegation we would have demolished it at the hearing as i said the person who helped prepare that affidavit of city counsel table today as for the second that it was just wrong if it was wrong then how do you explain why gilks would say this in the first place how do you explain all of the corroborating evidence that's independent of gilks and that's part of the problem here i think that's why there are these lingering doubts about mr tell it was his conviction there was no reason for mr gilkes to say i lied he's still in a virginia prison he was subject to these threats by the prosecution before the hearing and then he took the fifth and this is my point on the burden judgments because he took the fifth in response to my questions from when i asked him what's your name but the commonwealth wouldn't have exposed him to further jeopardy by asking him was there some misty along tell us about what happened with rapid david was it true they could have asked those questions and had they asked those questions your honor we could have moved and said this doesn't expose him to any greater jeopardy when it's coming from the commonwealth so there are lots of things again there is talk about burdens at the hearing in judgments you asked for this representation that we brought all the evidence we could and judge when you talk about the international component all of this i can say if they're if you're going to hold mr gil refusing to testify at this hearing against somebody it wasn't until it was that told him that he'd be subject to a capital murder prosecution if he doubled down if he affirmed what he stated in his earlier sworn testimony it would have been more useful perhaps if well maybe they'd get run into a wolf problem if they got a counter affidavit before all of this blew up i mean i don't understand it seems to me if i'm a prosecutor and i've cut this deal in a death case with go after the guy judge why would you wait four years five years and then on the eve of the hearing go to the judge and say appoint a lawyer to what we all know is going to say don't you dare take the stand and say a word judge davis not a lawyer in this room would say anything other than death case and we'd submit the warden couldn't just say it looks like we're ahead on points and so we can just wait until the clock runs down that is this evidence was available to them as well we think we met our burden on the facts we think there's no reasonable explanation for why gilks would say in his affidavit what he said with the level of detail that he said it except that it was the truth is to eames your time is the fire that we've taken up so if you haven't you can have a concluding sentence or two the concluding sentence would be i started out by talking about the effort of murder and how mr gill mr television was sentenced to death based on this evidence elicited by his own counsel of murder that never actually occurred that's a significant enough a substantial enough constitutional deficiency that we've asked this court to reverse the fish record and i thank you for your time