a prisoner district court below in part of our effort to to address the concerns with respect to may be faith to exhaust that remedies or procedural  s there was there was a claim made below of of actual innocence both the claim was made initially as a as a gateway claim and then this quote certified on the leak on the certification standard for that would be applicable in a free standing claim of actual innocence and i think that with respect to ed and at but it's focused on on the idea of  established supreme court president president whether it's contrary to our own reasonable application of i submit to the court that the court's holding in horror were speaks to the fact that it i believe that that therefore big that became the authoritative starting point under under the supreme court of the house versus bell so i respectfully submit that the if you take that line of reasoning from clue freestanding claim so in rescind that respect i submit that number one the district court was was implied in any improper standard in the value adding the the gate to gate keeping function  and i would just note that with respect to the district court didn't rule on some aspects of the ineffective counsel claim on the theory that there was some specific allegations or  contentions that were not exhausted at the at the state level well i would note to the court that the government has the state has conceded that the ineffective coin here is exhausted at least on page twenty case was also the lawyer who did the direct appeal there was a conflict there and i believe under the supreme court's precedents that that conflict excuses any procedural default with respect to failing to raise an issue on a direct appeal in addition to that in trevino versus the supreme court decision there on my brief listen frame court specifically says that where as in new york you require an effect of claims to be raised as the federal courts prefer on on on a collateral attack on a full forty motion in new york proof provision that because it's required generally to go on the represented him on his st full forty motion ok the district court incorrectly determined that will i really can't look at that stuff because it wasn't raised at the proper time that it was a procedural default and therefore it's because because if you if you look at the totality of the areas that occurred here you had by getting it wrong the courts not not addressing the merits of important cannot ensure did have dressed the merits of well there were there were issues pertaining to counsel's failure to object to certain arguments made at the trial summation objection by the summation arguments by the district attorney in the court specifies them and i apologize for not having fun but that that is the that is a big part of this no court has ever found that the state court has ever determined if this was this was an overwhelming case it's never been stated so with respect to  the ineffective climate self your honor there's two pieces of it the st part is why didn't you object when you had all of this bolstering going on at the trial this was surely is bolstering  repeatedly during the questioning of witnesses the court ultimately did strike the testimony of two witnesses but that was the day after these witnesses testify in the jurors that slept on this and then in some nation why were they not prior consistent statements designed to rebut an argument of recent application because it was no reason fabrication why and i think the argument that was made at trial was that the reason the girls were falsely accusing your client was because of something he had done after he had made after the victim had made these statements and insist your honor what it was is the the argument was that the the victim had emotional problems she was just stupid she was from a broken family she was very jealous of mr gross's new family children and how they were living in the quality of their lives  he the other girl the next door neighbor was similarly from a broken home divorced parents and these kids became very very close so the there it was almost a year later about this it was about something else that was undisclosed was never determined but she was crying and then that's the st time it cam's out about that mr gross's supposedly had committed the sexual acts against her but prior to that from there was the st incident was posed in two thousand and three with allegedly attempted touching of his daughter then there was the incident in two thousand and six which involved the alleged rape of the friend there's been there was nothing reported by anyone up until that point and then there was the incident excuse me in two thousand it was supposedly he tried to touch the other girl or as the other girl to touch him again j s and but the  point of it was is that did the fence wasn't even really making the argument that this wasn't that there was no problem there outcry the defense's argument was that you just can't believe them so for the government to bring up bring the stuff out when it before before an attempt was made to impeach him on that basis it would seem to be that that is the nature of bolstering this was coming out on direct not cross and not redirect  all of this bolstering stuff and that was extremely extremely prejudicial it was no independent corroboration other than these two girls talking who had this symbiotic relationship and there was nothing else other than their statements that that establishes this case and the circumstantial evidence was was very powerful and that that was that's really the grab them and i believe of the ineffectiveness was the failure to use what was available in this case separate and apart from the failure to object to the improper bolstering there was a plethora of physical evidence that was a valuable and i provided a list of it in my reply morning your honor my name is michelle merit and i represent the respondent harold brown this court granted a certificate of appeal ability on to cognizable claims the st claim was whether trial counsel was ineffective for failing to object to park consistent statements about the rape and the prosecutor's opening and closing remarks regarding those statements and nd whether appellate counsel should have argued that trial counsel was ineffective on that basis and neither of those claims has merit because trial counsel had no reason to object to this evidence and these remarks as mr lang stated these convictions aro from three separate incidents involving two girls petitioners daughter s w and s w s best friend j s who lived next door to petitioner s w lived thirty miles away and visited petitioner on some weekends and school breaks and the three incidents involved here are two in two thousand and three petitioner drove his daughter his nine year old daughter s w to a field behind his best friend j s and at that time those girls were about twelve years old and then in two thousand and eight petition our drove j ass to the same field where he had petitioner then backed off so about six weeks after that last incident in two thousand and eight the girls reported the crimes to police and by that time the girls were fourteen years old i just wanted to get out that background they were talking about three incidents and not all the girls are involved in all the incidents so the prior inconsistent statements that petitioner claims warranted objection consisted of j testimony that she reported that for she reported the rape to the police she told her sister and her friend different friend about the rape and testimony from his guidance counselor about jazz's disclosure of the rape to her on the day that j s reported the rape to the police and defense counsel had no reason to object to these statements largely because they were admissible and serve his interests  will have served his interests explain how they were admissible on direct they were miserable and direct because casey the friends the same to the friend and the guidance counselor were part of the chain of disclosure leading to petitioners arrest and this is a new york evident new york evidentiary role that allows in child sex cases the completion of the narrative of the investigation so it has to be nonspecific you can't give a graphic recitation of what was said but just something was said and something was done and that is the nature of the testimony here and then as to the testimony to the two to the sister that was made a year a year after the rape but approximately a year before the disclosure and that was admissible all to rebut a claim of recent fabrication because petitioner opened with he open open with a statement that basically an incident had occurred a few weeks before the the the  report to the police and based on that j s was angry and decided to to get some revenge to take to take to take out some revenge on and that was the motive to fabricate and the much earlier disclosure to the to the sister was admissible under that but in the op just capsulized the trial proof so the prosecutor just said you know here here here here is a narrative of what happened and why was the disclosure to the sister in two thousand and seven something properly stated in the opening of the prosecution before the defense well this was actually part of it was clear the prosecution even before opening that this was going to be the defense strategy of the prosecutor actually and on the record we confronted defense about it and he didn't say that this was not going to be a strategy and during  the defense attorney repeatedly asked the ask the panel do you think it's possible that a child could could tell a story and then just get stuck in a lie and  actually his just description of what he was describing to the jury was he was trying to find jurors who would believe that a child could try to get attention from peers by telling tall tales and then when one of those peers repeated that to a responsible adult found the found herself having to adopt the l so the prosecutor had a good reason to believe this was going to be the defense well but the recent fabrication terms of the suggestion that the motivation for j s and telling accusing mr gross was something that happened in two thousand and eight right yes so i'm not sure why the statement from two thousand and seven will be relevant in the opening at the end of the day i assume using it's harmless because that was the defense the defense was that there was this motivation to falsely implicate mr gross based on something that happened in two thousand and eight and the prior statements would have come in regardless yes i mean the thrust of the thrust of the defense was that this rape victim is detached from reality that she is just a troubled teen emotionally disturbed just looking looking for sympathy and attention and and envious and just needing peer approval of the district trial judge reversed course having allowed this testimony come in he believed that at points the substance of that testimony strayed into a subset became too substantive in the sense that the prosecutor was asking the friend and the sister questions about the rape victim's demeanor when she was making the disclosure so it went a little bit beyond nonspecific information about just a sequence a sequence of events or a fact of a statement and what the court said was we would be selling the jury short if we didn't think that they understood what behind what was going what was actually said in these disclosures so it i would say the court acted in an abundance of caution and endeavor to protect petitioners rights here innocence as to actual innocence petitioner asks this court to recognize a new constitutional claim which would be free standing actual innocence and sense maybe as relief is only available for violations of clearly established supreme compelling the st is a two thousand and five survey of petitioners property and that same survey was was introduced at trial for the same purpose which is that there was a stone boundary marker you know it's it's referred to as a wall but it's quite low two to two to three feet it's not it's not it's not keeping anybody out it's just marking a property line  and that that was intact in two thousand and three and that therefore petitioner could not have driven s w from the field to his house as she testified  trial and at trial there were some witnesses who testified that the wall was broken down at that point and vehicles could pass and there were other witnesses who testified no the wall was intact and at the end of the day the jury saw the survey heard this evidence they either believed the witnesses who said the wall was broken down or they decided this is a collateral matter to the attempted sexual assault  several witnesses testified that when s w was going to come to visit to visit petitioner a number of people were involved in making these arrangements sometimes the arranged part you know part of the arrangements might be made in person between between j s and petitioner since they were next door neighbors there would be calls to there could be a call to directly or her mom or her stepdad so there were lots of different people introduced his own phone records and they showed a phone call between him and s w on july st that lasted about three minutes petitioner testified that he remembered that call that they he was at a graduation party he called us wu and said do you want to come to the graduation party and she was swimming and and that that call was not used to set up the visit where the rape occurred the rapist charged with having occurred between july st and july th of two thousand and six so petitioner did not obtain any other phone records until after trial he got after after trial before sentence go first of all with respect to the same survey correct and i apologize for that it was a big record there was a two or three foot wall and she said it was not high enough to keep anybody the focus he was was it high enough to keep a truck out could a truck drive over it because that was the allegation the story changed from initially that the testimony was he throw from the back of an open field owned by mr cunningham to to his home via the truck down to the house then the stories changed to both girls stories change that because both of them said initially that they had driven he driven from the back of the field to the house then it changes to know now he drove us both now we've got different incidents with different people involved he drove us both to that end to the to the scene at that house so they know the area they know the roads they know the difference between masters road a mile away and and and and a path behind the house right now that is the survey prove your clients a you survey were actually your honor was was i when i when i saw a little paul the survey i believe it indicated that on one of the service these two little circles on the survey indicated the when the war was and i saw that survey and i thought that was very propitious in terms of you know during what feel what it look like back there so that's why i had included and i didn't realize it was in the in this fairly large record with respect to these three phone seconds i have three daughters i've never seen a young girl talk for less than a minute or two on the telephone there was a rd call july th which was for one minute and thirty six seconds ok  other than that there were no other calls during that month why why does that prove your client's innocence well i think the st two are prove nothing and i think the rd one it's kind of remote in terms of setting up an appointment for her to come and spend the night at the house and in thirty six seconds you know you know here i i get it it's not it's certainly not proof proof positive but my are this case in a purely  case like this where the defense is going to be based entirely on circumstantial evidence it's vital that every piece of information it's it builds on itself it's in it's essential to to demonstrate the you know falsities that you allege like this quote going to ask you one last question and the knowledge you sit down ok what standard do we apply to review the review of the evidence that you say is pertinent here respect to this chain of disclosure that counsel speaks about in terms of nonspecific when in child sex abuse cases the case law she's talking about she's going to case law that speaks to times and that kind of stuff but the point of it is is that that nonspecific language in which he's talking about is limited only to bills of particulars under the state in new york not evidence