whitley i know a brief this blew in the district court but these issues really merge well you're right up to a point you're right that there are a set of circumstances under which we can do that but we as i understand it we have to find that there's an absence of available state corrective process or that circumstances exist that render the process ineffective to protect the appellant in order for us to be able to do what you just said so yes we can do it but only if those circumstances exist so here because there may be it seems like there may well be an available remedy back before the state why shouldn't you be obligated to go back there and present this to the state court first the effect of which then changes the standard of review when this court then would later get to the merits from basically to know to the deferential standard of review which is is i understand all point of this you know i'm not sure what the state run media is and i'm sure that in the state is not argue that they haven't identified a remedy that we should have been using they do have post judgment remedies for late disclosures like this don't think i mean there may be a vote in the state post conviction procedures in and in tennessee there's a one year deadline for filing a post conviction but sense for the state court to make a ruling on whether there is such a remedy if not i mean it does seem like it's an issue that's hanging out there even though it wasn't raised by either side here on appeal but i mean that's the first thing that jumps out to us is that you've got this brady material disclosed very late it may be material but we have a state court ruling on this thing no no one's ever gone to see if there is a post conviction to a waiver of the state remedy that may or may not exist i mean the state has even asserted the state remedy may exist and i know of litigated other cases that there's a case david robinson versus or officers found the material and we've litigated in federal court and what what would be the principal basis of your objection to us sending it back to the district court to deal with exhaustion go back in the state court good review there or come out of here and then we're subject to the of course and limitations like that we are our objection is we brought the claim or we you know it's the state's fault that this was not brought up in city court the prosecutor failed to disclose this material they could disclose it in a time they could dispose of during the state post convention proceedings they withheld it there too they gave their misconduct to kept it out of the state post conviction proceedings just like it was their misconduct that kept it out of the trial and so so that's that's or objection th you have any basis to say that it would be unreasonable de lay to do what we've asked you about given your experience with prior cases and i'll make this a compound question so as to suggest that we should head has there been undue delay when it's gone back to exhaust or not well you know i've never seen a case and not to exhaust in state court that's that's  told lies about both kevin and michael child supposedly saying things that would indicate this was a deliberate robbery and she told lies about well this is a set up by corey watkins because he had the pager and he was using the page after my son's death and all that which is just flat out not true should also when police came her door she refused to tell them when she last saw her son and this is a day or so after he was missing it's always been very useful material to attack this lead witness for the prosecutor and cross is very important to mr x the question of was he just dragged into a fight with his uncle or was he trying to rob the man as the most important question of his life the findings in the state appellate court and on circumstantial evidence of the robbery i mean they cited that the victim's pants pockets were inside out with a piece of change or you missing shoes that has nothing to do with you know robert you know the body was stripped but to make it look like a before the fact or aubry rather than after the fact robbery that's where my recruitment really came in because if you have one case were you know respondent has not weighed the exhaustion requirement i can't recall whether it was in the response initial motion to dismiss or whether it was in a subsequent response but initially the respondent did raise the statute of limitations issue as well as exhaustion asserting that it was both time and procedural barn and certainly we don't waive that here i think i would agree with mr holly to the extent that for the sake of judicial economy and because the district court's ruling was on the basis of the merits would encourage the court to the extent that it would reach the merits and to  over the whether we can affirm the denial certainly we agree with you on that the question is if the panel concludes that these claims have merit then how do we grant it in the face of this exhaustion problem because while our position is that the claim is an exhausted our alternative position is that the claims simply don't have merit and that's an appropriate basis for dismissal because that was the district court's basis for dismissals well you said something about who he drew for how could would have been subject to a public records request in the intervening time between the end of the petitioners post stay post conviction proceedings and then issue of these federal habeas proceedings and it's relevant to point out at this juncture that not only religion that there procedurally defaulted but this time was time  d as well and i don't recall by how many years but it was several years and i think that factor plays and into the equation when determining whether or not the petitioner was diligent about requesting any of these records in the intervening time between his stay put post conviction proceedings and you've injected procedural default which generally then ends up merging into being an exhausted in other words as cause for the procedural default because they didn't he didn't produce the records it seems to me they were records he should have produced them he didn't do it so that excuses the procedural default but the claim still remains to be done on exhaust so that's why we analyze it under exhaustion understand your honor and that's why we're in a position today dealing with what we have from the district court which is a decision on the merits rejecting it on the not material for impeachment purposes that is there's no reasonable probability of a different verdict had the state disclosed the documents that issue the documents are in an immaterial first because they relate to collateral matters that were not the subject of any witnesses trial testimony for example the petitioner contends that meyer christmas bank records contradict assistant district attorney moslem's interview letter on the issue of whether or not myra kirsan made the tax refund deposit on the day of her son's murder but whether chrisman deposited the tax refund or not is immaterial in collateral since she did not testify about any tax refund deposit during the trial moreover christmas records coupled with mom's letter cannot substantiate the brady clime because defense counsel actually used these records to cross examine chrisman during the trial in other words he had these records and used them during the trial and brady does not apply to information that are not not undisclosed or not wholly within the the prosecution's control similarly christmas deposition testimony from a related civil suit cannot substantiate petition is ready claim because the petition is criminal defense counsel actually represented the petitioner in that related civil proceeding and actually depose chrisman th also was not wholly within the control the prosecution then in any event the moslem letter christmas deposition testimony and her trial testimony were all consistent on the point that the petitioner let the victim left his home wearing expensive michael jordan tennis shoes and also possibly carrying some cash the comparatively conspicuous michael jordan shoes that went missing from the victim's body were the more significant evidence in terms of establishing the petitioner's intent to rob the victim that was either concurrently formed or proceeding a ctual robbery murder position also claims the report summarizing a police interview with corey watkins could have been used to impeach chrisman on her testimony that she had no knowledge of the victim actually using marijuana or cocaine but the petition present this is a basis for relief before the highest available state court even though he listed this report as a basis for relief to during his motion for new trial thus this particular aspect of the petitioners claim if there are no others that are perceived as a default this one certainly  defaulted since he had this information at the time of his motion for a new trial but did not present it to the highest available state court in any event christmas knowledge or lack thereof about the victim's involvement with drugs is a collateral issue in this point as demonstrated by the tr refusal to allow defense counsel to further cross examine chrisman about the subject matter during the trial second the documents offered her what about what about the evidence that shows that it was christman and her husband that were simply driving have made a difference with the jury known that i don't think that it's the weighing in going christmas if you had a bias or a motive to lie or stretch the testimony to fit what was her theory first of all just address the point it's not the this case went through three prosecutors i believe the d a s office to set up such that there are national investigating prosecutors are involved in the earlier process and then there's the more trial oriented prosecutors who address the concerns later but the petitioners bready claim hinges on the premise that these various documents could have been used to impeach miss christman and the christmas testimony was somehow essential to the jury's verdict but this entire premise is completely false i think you're saying there that that without you take krist testimony how completely that the evidence on prior intent or contemporaneous intent to rob is overwhelming yes your honor right is that the reason for that is that tennessee rule on felony murder is that the jury may infer an intent to rob based on the defendant's actions even after the defendant's actions immediately following the killing we understand that there may have been there was evidence to over you know sufficient  missing from the victim's body or at least found in the motel room if not more important equally consistent with erupt him after he was dead more importantly i mean was killed and they said these are expensive shoes of take the shoes and that was the juries that was the jury's permissive inference to make and that all supports that all that evidence supports that immigrants notwithstanding this christmas testimony and it was more than circumstantial evidence it doesn't compel the conclusion i mean you're saying that that if there's enough enough evidence to get to the jury you can withhold whatever you want and it's going to be harmless there's no case law and it is there it doesn't compel that conclusion but it doesn't compel that anymore the meier christmas testimony would have compelled that he was or biggest problem with your overwhelming argument is what happened in the barn it's the same evidence we did cement that it's not even appropriate to consider what happened in the barnes trial understand you argue that here's my problem you have you have good arguments for each one of these bits of information that was that was withheld but part of the problem with the district court analysis where we to get to the merits is the district court did the same as you were doing took them individual and didn't ever assess them collectively and then when you combine that with barnes which i understand you think we shouldn't look at it just seems to me that this is a much closer question than perhaps the state acknowledges it is with these back to the merits here and to address your cumulative error argument there's still the underlying rule that there can be no cumulative error in the absence of individual error and so it's appropriate to go through each one of these pieces of individual evidence to assess whether or not individually there's any error to those to assess whether or not there's a cumulative error and simply in this case there's if somebody has pointed ear on a particular evidentiary ruling for example we don't have that here we're just looking at these items individual and collectively to consider the potential impact on the jury of the suppressed material you still have to to look at that collectively there are a couple things i want to point out your just saying individually individual a ok no big deal doesn't it doesn't have much of a potential impact ok you might be right individually but that's different than when you look at it collectively the bottom line is if we take out entire testimony there's more than just circumstantial evidence of this or concurrently former proceeding intend to rob out of that part and part of that comes out of the petitioners admitted killing of the victim as well as his admission that immediately attempted to rob them this is an individual who is under six feet tall one hundred forty two pounds hundred forty five pounds versus two individuals who are around two hundred pounds and close to sixty each it's highly unlikely that the jury is to you know pursue a theory that this small individual came over with with this crack cocaine to rob these two individuals and then just out of nowhere they retaliate it's more likely that this man one of their mr crisman one over there with drugs and mr  robbery when they've rented a motel room under their own name to say that they premeditated a robbery to get this guy over to their hotel room so they can kill them in the hotel room that they've rented and that this is this was the whole thing i mean that seems rather incredible more likely scenario is that they got an argument over the drugs they were selling or didn't sell or should have sold or whatever the heck it is and they could kill them to say that this is a set up robbery that's their ugly dumb woman obligation for the the robbery and the killing and we're not saying that it was premeditated that and that's not the standard it could be concurrently in for maybe they got over there maybe they got into a dispute i had to speak and maybe's in from this court but the bottom line is they were over there something happened and they killed this man and then immediately afterwards took property from his purse and rummaged through his pockets and took his vehicle but the robbery has to be conjunction with the murder to be felony murder right it does your honor if it's it if it's separate if the murder occurred and then let's say it you know twelve hours later they take stuff out of the body it's not felony murder it's not murder in connection with with the robbery it's again the tennessee law is that the jury can make that inference given what based on the facts immediately after the robbery so they don't have to have had the original intent to rob the murder just has to have occurred in connection with perpetration robbery that's right your honor that's correct and we just feel that there is overwhelming evidence given this admission of the killing given this admission of taking the victim's vehicle immediately after the killing  that there was that the jury made an appropriate reference and or an appropriate inference and that the evidence was overwhelming for them to make that evidence and that that inference was appropriate notwithstanding my or christmas testimony you could totally take out my recruitments testimony and that i'm still struggling with how how was it overwhelming if you're talking about inferences the jury could have drawn from circumstantial evidence when that you can draw an inference equally is logical that they were in a fight they killed him and then they say they look into it hey guys got expensive shoes you've got a nice car why it would take a christmas testimony didn't add anything to that whether or not she said that he was wearing the shoes or whether they subsequently found the petitioner without the shoes either one of those facts can equally support the jury's inference in that regard to another words meyer pressman's testimony that he was wearing the shoes doesn't add anything that the jury she may she had and her testimony was very inconsistent between what she had told told the investigators or the prosecutor after the incident and what she testified at trial and that's what would help and so the evidence that she that he was wearing or with expensive jewelry was significant because that's something that obviously they wouldn't see even to the extent that he may have been wearing jewelry in the midst chrisman testified that there are still evidence in the shoes in terms of the  property taken certainly the shoes would be conspicuous one on the outside any jury would be conspicuous so whether or not there was also jury or whether or not she testified a jury there were still obvious evidence that there were there are items missing from the victim's body when your dad when he bought put on it about they're stretching the facts don't support their theory it's for us to be a reach as far as the victims pushing the cases i think specifically maybe talking about how the victim's family wanted a certain sentence that they're not knowledgeable in the law but they want to do either a death sentence or life without possibility of parole or felony murder and basically he insists that they could have been impeached on this basement basis to show character bias but we state that the character bias of a parent a murdere parent of a murder victim is readily apparent and any event introduction of that information the jury would have been inappropriate since they're not supposed to be informed and encouraged to ponder sentencing when they have no sentencing function sort of put in front of the jury information about a potential sentence because that's what the victim's mother wanted would have been highly inappropriate i believe i'm out of time all right we've got you're the state's response thank you mr holley i forgot to ask you if you reserved any rebuttal time three hundred eighty dialler watch and a five hundred twenty dollar gold ring with diamonds and and one hundred seventy five dollars that she'd given that day there right that's right and at least the watch and the gold ring with diamonds would be readily apparent i mean yes are to be wearing them in regard to the robbery theory i guess those i think are going to be the kind of thing that someone could steal to pawn we don't of the prosecutor mr myler new shoes were missing when he said down with the with the parents and then they told about all those properties supposedly flush stuff he supposedly had and that's what triggered the charge and that's where they argued  that that wasn't the theory that you had felony murder because they killed him to get the drugs that he had rather than give him the money for it i mean perhaps you could but it never was there in either of the trials and in fact they fought he didn't have the drugs on his person either carefully consider the case and it may be submitted and the clerk may call