kenneth clark is actually innocent of this crime and there are three points i'd like to stress this morning st i'd like to start with the standard of review that i'd like to start with the ads and i'd like to go to the district court's finding that mr monroe thomas the state's star witness star witness monroe thomas beginning then with the standard and i would like to reserve june two minutes for a puzzle beginning with the standard of review the parties are generally in agreement that the standard of review is the no vote with respect to the ultimate question mentions a clear error applies however st of all is directly contradictory to that position and that's the supreme court case specifically in that case the supreme court review testimony from a evidentiary hearing in the district court in tennessee and  indicated that the standard was and then they applied to novo review and overturning those credibility determinations and i think that that controls here regardless even if the court disagrees with me on that point  still have established actual innocence under any standard of review i'd like to move on to this issue of whether monroe thomas was forced or threatened to recant his trial testimony now the district court clearly urged when finding that monroe thomas had stated that he was threatened post trial to recant his trial testimony that's not what he testified to and he was quite explicit about that what he said was while he was still living in san bernardino which ind pretrial a threat was communicated to him to not testify against mr clarke at trial now we certainly dispute that that ever occurred but assuming that it did that was pretrial mr monroe thomas then testified against kenny clark and there there was no threat that was the end of it the different district court misinterpreted that to mean that he had been threatened to recant his trial testimony now there was a very lengthy exchange between the  pressure specifically monroe thomas was asked four different times whether he was pressured to recant his trial testimony he said no eventually on the th time he was pushed in what he ultimately said was  did feel a little bit of pressure to help kenneth clarke but this was not done in a bad way and he certainly was not scared the district courts really error here was the law requires that the court look at the circumstances surrounding it and the district court failed to look at the three substantive witnesses that we put on at the federal level bench or a hearing who all established that monroe thomas freely and voluntarily recanted his trial testimony and the state has not disputed those three witnesses credibility and there's no adverse finding about those witnesses credibility what specifically happened was monroe thomas contacted his niece and had his niece put him in touch with mrs clarke this was two months after the trial i mean roe thomas and recanted his testimony to her when he then became unavailable and what happened was his phone number became disconnected this clarkson traveled to ohio met with him personally and asked him to sign a declaration memorializing what he had told her she brought a witness with her who was a relative of mr thomas's and they have all testified that there was no one to pressure and he simply memorialized what he had freely and voluntarily said to her counsel even if the district court was wrong about whether mr thomas was pressured or the court give a lot of other reasons for disbelieving  so what are you even if we were to agree with you that i was wrong on that point but what are we to do with the rest of its analysis well you're i mean i think that was the primary reason the district court found him not credible i mean there was there was other things like were there a lot of inconsistency isn't even just within the evidence you're hearing and yes i just money and i think one thing that the district court found was that that monroe thomas sort of went back and forth on what specifically he was recanting the one thing that he has not  recanted and no one seems to dispute this is what they were doing in the parking lot that night and he's been very explicit that he did in fact go to the parking lot that night to fanciful in a stolen floor buffer and he then got into a heated exchange with a drug dealer the jury knew none of this and had the juror knowing that this violent interaction took place before mr clark even arrived at the scene they would have been left with two reasonable alternatives as to who committed this murder you know thomas didn't see the murder so all the jury knew was that he got into this car accident with kind of clark and hearing that no one else would have a possible motive to harm metro thomas and his friend rizal as they were left with only one conclusion it had to be kind of clark but had they known that this interaction had  occurred and the interaction was so scary to them that they jumped in their car to get out of the scene as quickly as they could and that's what caused this car accident they would have been left with a very different impression about what happened that night i would like to highlight some points about our  eyewitnesses we put on four different eye witnesses at this evidence three hearing who all established that the drug dealer i'm referring to who we've called buddha throughout this process the buddha actually committed this murder the district court found for various reasons that our witness witnesses were not credible but those same reasons all applied to monroe thomas i just like to highlight a few of those the big one seems to be forthcoming this our witnesses were all criticized for not coming forward earlier and saying what they had seen forthcoming this is not a factor that in and of itself goes to credibility the supreme court's been very clear on that macwhich and perkins and this court has been clear on that maher says versus soto also mr clark cannot personally be responsible for bringing in these other witnesses like excuse me he's not personally responsible for their delay he's responsible for once he finds these witnesses bring them to court and that's what happened here and once he became aware that these witnesses had information to offer we promptly brought each of them in to testify at the federal evidence you're hearing and i would also like to point out that mr thomas hasn't been forthcoming in this case at all he did not approach the police about what he had seen he was actually found by the police themselves the california court of appeal described him as a flaky reluctant and uncooperative witness who then actually fled the state of california before this trial and the district court also faulted our witnesses for having prior convictions for convictions in and of themselves don't necessarily point to credibility in fact none of our witnesses had convictions for crimes of moral turpitude and one of our witnesses had no criminal convictions whatsoever this is contrasted with monroe thomas who had a prior felony conviction for welfare fraud the district court never reconciled that contradiction and it just occurred also faulted our witnesses for claiming to be sober on the night that this occurred each of them offered reasons why they were sober at the time  this crime occurred that this accord didn't reconcile that with the fact that monroe thomas claimed that both he and result us where sober at the time this occurred notwithstanding the fact that he admitted that they had spent the day drinking and using drugs and results had to be a say b a c of point seventeen dollars at the time of reconcile that with the fact that this is a really small community and everyone has some connection to each other i mean monroe thomas and self is distantly related to mrs clarke and was friendly with mr clark sr and finally the district court spent a lot of time on minor inconsistenc witnesses testimony specifically things like how much damage was done to mr clarke's car or how many people were in the parking lot i maintain that no reasonable juror would use those minor inconsistencies to discount these witnesses testimony  good morning your honor smith placed the court ronald jacob deputy attorney general for responding for more than eight years following his conviction in two thousand and five for the murder mystery all rough sol clark filed pleading sat at every level of the state courts the district court and this core eight maintaining that an unknown biker was slick real killer sometime prior to the two thousand and sixteen at the gantry hearing mr clark decided to try ave alibi now his story is that a very well known community so every everyone knew who buddha woods unfortunately ferg mr clarke this new alibi with his th hour witnesses did not fare well the court found all of them not to be credible and at that hearing mr monro thomas affirmed his trial testimony in all material respects for example that when he said it all except one no i think at trial he said he saw the shooter actually pull the trigger and this time he says he didn't see them you know your honor i respectfully disagree with that at trial he said that so it's our position he was consistent on that point he was consistent on mr clark being the only one who have a gun that mr clark was the one who punched him monro thomas standard applies to these types of hearings i do i'd like to briefly address house versus bell what happened in house versus bell is that the state of tennessee made the same mistake that did the factual determination with the legal conclusion and the state in that case basically argued the standard there there are two sides to this the factual determination and then the ultimate legal conclusion in addition in house versus bell the district court used the wrong legal standard and its findings were rather conclusion conclusory they weren't supported in the record none of those problems happened here comes of it could i ask you a question about the standard  to say that a reasonable juror could have found someone guilty it i mean couldn't one or different right now you can have a situation which a reasonable juror could have found him guilty but it is still the case that no reasonable juror would have found him guilty right of another thirty there's a gap between those two well actually but that's really neither here or there because that question is for this court that's the ultimate legal conclusion why the district court if though deference on our our our it's factual findings and  and in jones versus taylor this court recognize this dichotomy between factual determinations which are done by district court at an apple denture hearing and the ultimate stewards versus pape the court did not need to decide that question since the petitioner failed under either standard so therefore it's our position that it's respondents position court got it right in larson vs soto that there is this dichotomy of the factual determination send on the legal conclusion and the clear error standard applies to the factual determination and in this case mr clarke cannot show that the district court's credibility findings were clear  eyewitnesses who were there and actually saw the murder they identify deval thomas this person there's no inconsistency in monroe thomas not knowing who deval thomas was you know thomas actually testified at the federal evidentiary hearing that he hadn't been up to this specific area in a long time and although there was one hundred people in the parking lot according to him he only knew two of those people one was mr clark and the other one was the handyman robbo that he tried to sell the buffer with who was in the company  night he hasn't affirmed his trial testimony in all material respects he's maintained that there was a nd person in the parking lot with a gun that night and he's also maintained that he did steal this for buffer and he did get into this violent interaction with food which is something he lied about to the jury at the time of the trial i think house is very clear that the novo applies i mean justice roberts specifically said and we have factual findings about reliability of the new evidence in the record factual findings the majority disregards without finding they very clearly applied to nova review to those factual findings and finally your honor i just would like to point out the similarities between this case and house there was significantly more evidence tying house to the murder in that case the only evidence of mr clarke's possible guilt here is monroe thomas a witness who's all over the place who didn't see the shooting and now for new witnesses who described in the exact same way how this murder actually occurred i don't see how any reasonable juror could listen to all of this and believe that there is proof beyond a reasonable doubt the mr part committed this crime so i respectfully ask the court to remain on this case to the district court with the finding that mr clark is a stablished actual innocence and allow us to l