state your honor the district court's decision here was wrong on both issues but i'd like to start my discussion with the constitutional issue because it is dispositive in favor of the state here under the district court the state court's decision difference in its holding and its factual findings but the district court determined that that was unwarranted here that was error which should come pounded by making its own  factual findings that were wholly unsupported by the record there were two factual findings and they were critical to its merits analysis the first one was that there was actually a link between this purported fee dispute between the investigator and counsel and counsel's performance the only source of that suggestion was say affidavit of petitioners father who of course had no knowledge of the inner workings of counsel's mind and stated he did have knowledge of the money that he gave to lawyers to give lawyer fifteen that there was a link between council's decision not to use hank since evidence not to use the photographs and the videotape and this feed dispute he didn't show that all he said was that it was his personal belief that that was the reason thanks and wasn't called it how did you make that mr he's a paid investigator for the defense i'm not suggesting that he would lie about something like that but he knows who is working for and his opinion is going to be skewed in favor of the defendant the petitioner but as you pointed out if you look at the photographs that were submitted to the state court it's clear that you can see out that window you can see across the street to the friendly's market which so many very muddy but you can see number ten i think you can see the friendly market  and i don't know what there is and in in the money part of it still for the black down but it would seem that you can see the street that's correct and that could be why should i guess you would argue that we should first of all it's the petitioners burden it was his burden in the state court to make out his claim and it's his burden in the hippies court to make out his claim as you know in the federal hearing there could be no testimony about the constitutional claim because it was limited to the gateway claim of actual innocence so there could be no testimony about from brettschneider about why he did it in call counsel but his reasons are apparent from the record you don't need to hear from him to see that had he introduced those photographs it would have filled a gap in the people's case because the people didn't introduce a photograph showing the view from the window out what they introduced was a photograph a crime scene photographs from the street looking up to the window and it would have together made a complete picture of what the witness said she saw and where she saw it from the state did introduce a similar photograph at the federal gateway hearing which confirmed the correctness of the state court decision that counsel was in effect different not using this evidence the federal court should not have reached this issue in the first place because petitioner failed to establish his actual innocence and i mean his actual innocence that he was factually shooting and if you look at the show casings if one considers the show casings for four guns were used one was dropped from the window by more two were in his trunk and the fourth one not recovered but the shell casings in the middle of the street which is not were not not when mr hyman but he didn't have to use a gun to be guilty your honor because he was charged as a principle and accomplice under a traditional deprived in there to prevent different concert so because he can't show that he's innocent of participating in the shootout because of course his statements put him right in the middle of the shootout in describe an ambush that no other evidence shows occurred let me be sure i understand your position on this because i would ask your adversary to address it they didn't offer evidence that showed for instance that he was in another state on that day correct evidence so it's not that kind of actual innocence claim what they've done is offer evidence that perhaps invalidates the identification testimony of an eye witness wrecked but the other evidence is that there is un evidence that he set the scene and there's undisputed evidence that a vehicle associated with him was shot out is that right vehicles associated with him what other evidence should i be focusing on that undermines the actual innocence claim what if anything the statement of jonathan whittemore the person who is on the other side of the street shooting back at him if you look at both  statements taken together they paint a complete picture of what happened which is something the jury didn't have before it but at the gate we're hearing we introduced whitmore statement and if you look at them together it shows of a conflict that was brewing for two weeks between we're not talking about whether the evidence that remains is enough to convict it's whether or not there's evidence of actual innocence and i'm just just looking to ask whether there's anything else you want to stick consider on the inquiry in the context of reasonable doubt so more likely than not that any rate reasonable juror would have a reasonable doubt so when she's saying that's actual innocence it is but it's filtered through the standard of reasonable doubt happen any time it was recantation by a major witness and we have not recognize that because we're all too mindful that in certain  cases those with nefarious motives can get a witness to recant after the fact so that has not been enough to satisfy the factual innocence and my particular concern here is that it was an analysis and you have to look at the trial evidence and certainly consider the weakness of the trial evidence and also the new evidence that informs the district court's decision but really the the people the district court's decision  analysis and look at that whole thing the whole kit and caboodle i don't think the law although recantation evidence is inherently suspect and there's a lot of law about that although a lot of the cases that deal with this when you look at and they also acknowledge that a recantation if credible you have to look at surrounding circumstances about a recantation in addition to judging in the context of the whole record can't be very powerful evidence that guts a case to the point where it  meets the actual innocence standard and i don't think statements to you couldn't see from the third floor window you couldn't see the crime scene i'm not fractional and i mean you could factor that into the actual innocence analysis affidavit say is thanks and did a video analysis looked at it from different angles he put in photos that are hard to view by the way because he just black be there just not great photographs but saying that through his analysis and looking and having someone stick their head out of a car window because it's too far away that's different from saying you know the crime scene from the third story window not the one on the hallway with the one right across the room see what i mean is he right about what i'm saying ok we believe he is right and had there been an evidentiary hearing where that video had been come forward or hanks and been able to testify in state court additional courts not allowed to can consider anything but for what's in the state court record at least on the ineffective assistance but on this he said it's impossible based on his viewing and his photographs and without going there and saying it or seeing the video i don't see how we can refute that this photograph was his was his opinion as to possibility based in part on the time of day  quite perfect if you're looking at that window but it may be on him what his testimony would be that that that you couldn't see who shooting out of that car because of the dark  i understand the hinkson photographs i think it's difficult to tell and i think without an evidentiary hearing and hearing from hanks and it's hard to judge that without that being developed and this is why i was saying it's a panelist a problem with what you have which way does court record and what that meant as far as his analysis of ineffective assistance and hanks in the saying that it's impossible to see it was unrefuted and it was never fleshed out that's ok so going back to the trial evidence i mean judge gerry i think deals with that very effectively he talks about why ellis was so critical she's the only one who says tully hyman is the shooter coming out of this group in this green car the others had a variety of problems  people associated with him where the shooters she doesn't braze anything about whitmore until it comes up surprisingly on cross examination says she would have said anything about whitmore had she not been questioned about it  she also gives a different account than alice about the event and her testimony was dubious and i think it's clear just from reading it in addition to what judge jury said  well if you're talking about reasonable doubt and that's one of the reasons why i started with this because this is a situation what would a rational juror do with this whole body of evidence which is what judge jury had to do now we're back to the s putting things in a side that's what he was tasked to do and when you're dealing with only one witness in a crime scene that is a really a mess a lot going on for witnesses day saying different things about what they saw nobody putting mr there his car had bullet holes in it which is consistent with his exculpatory statements that he gave to the police and the issue of the red acura versus the green actually testified in the grand jury was clear green car mazda very clear about that and there was some registration issues around nat that i think explains what that inconsistency was in his comments but the ballistics the fact that the guns were in whitmore's car which is this thing that this wafting throughout that never gets resolved it is a problem and if you look at that trial record and you see that in conjunction with ellis who is repeatedly saying hi and was shooting ok and then she recants and recant under circumstances that is not just like i use people versus she a state case but there's obviously federal law it's not a crappie recant is a recant with substance to it she says she was with two other people used to other people testified at the gateway hearing and both said she wasn't with  them and the judge credited them in addition to the core of her testimony about the recant which is that she did not see him and she had lied because she'd been put pressure put on her from whitmore and that information all of them th he found that she was a liar you know in some respects but what he does do is he struggles with in the way that you would want a district court to struggle over such an important analysis and whether what a rational juror would do under the any rational juror and that's what he did and he looked at her testimony and judged in the context of other evidence and found that it was reliable on the core issue and that's what the innocence finding is based upon we can't ignore the fact that this recant in a case where it's essentially a case that boils down to the testimony of ellis is so important and i'm not saying it's just recant but even we would look to find out whether a fee dispute can can can amount to an actual conflict and the supreme court who what i don't think ok so under strict i mean talk about a conflict that's what strickland talks about and talks about an actual conflict doesn't limit it to feed  investigate by the u s attorney's office and fail to disclose that fact and that was considered to be a conflict of interest so there's a number of conflicts of interest in a financial conflict of interest here i pocketed the money that should have gone to the investigator and therefore didn't put the investigator on to testify is clearly a conflict of interest and i don't think that we are you know limited to like you know the exact flavor of the conflict when we're deciding whether or not to strip in violation and sue and i think they would  what's the level of generality that applies i mean i don't think you know i think it's obvious that if he has a financial incentive to not pursue a particular strategy or a line of defense that would be exculpatory and potentially exonerate his client that is well within the realm of you know of a strict in violation the problem with you know that language supreme court precedent and this is something the courts have struggled with and still are probably  his financial interest the lawyers financial and he got fifteen hundred dollars once wanted to keep it rather than give it to yes i hope i'm understanding where you're saying that mickens precludes that as a  essentially not having to show prejudice and how for so in multiple representation cases it's very difficult to ascertain actual prejudice so there's no relaxed thing here judge jury goes ed on this conflict and what came up on the on the principal argument the sanders affidavit and the information from hints and was never challenged so he said there's no other explanation why you wouldn't do this and this is what he credits hanks in on it's impossible to see but there's no evidentiary hearing in state court on that and it's not refuted so he lies on that information and clearly in this one witness identification case not to put on hanks and to say it's impossible to see is clearly a prejudice problem because it would have changed the outcome and he says at the end of his decision and breaks that down so it's not really a mickens issue i don't think and i do think that there's different flavors of ineffective assistance and conflict that draw  from strickland and other cases and you could look at second circuit law to inform your analysis as to whether or not it is a it is a it's a supreme court precedent it's a it's a somewhat fluid analysis and i think we're clearly within the zone so the state court with what you're doing which is the cart before the horse the evidence has to be of innocence and then it has to be so compelling that any reasonable juror would have a reasonable doubt it's not any evidence that could raise a reasonable doubt something that could impeach an accomplice witness that showed that he had six other convictions and that they were for violent crimes might be a basis for our doing well a juror would have a reasonable doubt or evidence that he previously lied under oath but none of that would go to innocence so it seems to me that you have the evidence you have to come forward with the new evidence has to demonstrate innocence then we get to well is it the kind that would raise reasonable doubt if you look at the whole record i don't know if that's where i may i may evidence to the contrary because i'm having trouble finding a case in which the actual innocence standard has been satisfied by anything other than something that put the defendant in a different place or was in  admission by another person or something that compelled i don't think the law is that the defendant has to come forward affirmative evidence of innocence to be allowed to have his case says i think it is reasonable doubt look at that would show that so that i can do that i just i just think that that's going to i don't think there's any cases that would ever say that it doesn't come up i think we start with the supreme court saying over and over again including recently that this will be a rare circumstance where the gateway innocence standard will be satisfied and yes absolutely and the cases where it's been satisfied seem to fit the pattern that i've described to you unless i'm overlooking something i do think it's fact based and in a case where boils down to one witness ellis in these other things but essentially when you're dealing with you know in the case and she's recanted and the court credits that recantation and that finding ok is supportable and doctor by this court i think it should i think as a matter of law that is that is all that's required and i just don't think requiring the defendant to come forward with affirmative evidence has him an innocence is a can ever be because every case has different different contours and if you're having something to add to what happened case he's putting himself on the scene and he's saying i was a victim i just think that to say well look at this was an alibi you know maybe you'd be in a better place i think to parse it that way goes down a dangerous path but i don't have a case though which i wish a hat to say look and there might be some district court case somewhere in the country where this similar scenario has arisen i just don't have one in my fingertips thank you you thank  i'm sorry adversary is actually asking this court to change the law on actual innocence it is as as the core pointed out a requirement that you show actual affirmative evidence of innocence such as a third party admission something wrong with the forensic evidence and a third party admission or that's defendant was someplace else are you changing your ground as to what he would be use and i mean this was tried on the basis that he was shooting accomplice in this shooting either under a depraved indifference theory a killing field story or traditional shooting into a crowd theory and the jury was charged on the latter although it wasn't trucks on the former but it doesn't really matter in this context because the in did the evidence show beyond a reasonable doubt that he was guilty at this point it has he shown enough evidence of actual affirmative evidence him in it in a sense excuse me to warrant the very very rare remedy claim allows so it doesn't matter here whether he's guilty under this theory or that they're in the fact is that he participated in the shooting that left an innocent bystander dead in the middle of the street