that this matter be reassigned to a different disparate judge i'm going to return to the st issue but i'm going to divert off just a bit in in the presentation to concern the standard  review in this matter because i think that's the important issue that overrides all of this and i think before discussing the merits that we discussed that st and as as i stated this court is charged with the old judge potter stewart standard i know it when i see it i would ask this court to consider my arguments in the brief concerning the guided discretion and i believe that this abus discretion standard is governed by this standard if the motion sets for specific controverted issues of facts which are not conclusively gated by the record and approved at the hearing what entitle the petitioner to any relief this provides i believe a platform of a legally enforceable rule of abuse of discretion that has some actual meaning but let's return to you this and why concern is we've already heard this case once before we are ready and although at the beginning we said something about having the hearing at the end we said it was up to the judge to decide whether to happen here  would have been a lot easier if we hadn't ruled you said having hearing but having not ruled that the st time are we bound by law the case that the judge properly was to consider in that extra document which was all that  on top of that and decide as a matter of course that he was entitled to no relief and i think in the brief it's demonstrated that judgement right basically just ram to conclus wasn't clear that there had to be a hearing in light of this extra letter sent back to the district court to decide that which it did so i miss a little bit struggling with how we address the law the cases were not just straight out looking at player in the prior rip process did this letter change the scope of having an evidentiary hearing he never really reached that question in the st place he basically threw it aside and that letter was not decide you either have to have a hearing or not to have a hearing but we just said it back to the district court to apply the normal rules we were making a decision that you didn't have to have a hearing or that you did we were just saying proceed on with this case like it like you're supposed to my understanding of the mandate issue was that the district court was decided in light of the new letter whether an evidentiary hearing was to be required in the d i believe that is the issue that judge mcbride answered or didn't in his opinion but i believe that is the issue before the court today and that there is his conduct in not happened here and he answered it wrong answer incorrectly that is correct he abused his discretion in not granting an evidence for here or can you explain why an avid interest hearing was required on this evidence correct or on the end and i think that this him to take the fresher look at this time given the way the letter being received and in light of that letter basically then coinciding with all of the other factors listed in this court's opinion as to hearing should have been required yeah but i mean it's it me the judge it's not like we just didn't have a hearing went to sleep and he has a long order here eleven page order on the subject so you can just agree with that i understand that but he has certainly written something so me the point here is meeker that in the st and all ordered hearing based on what was before us about looking at the letter we did not conclude that that required a hearing because we would have had to order inclusions but it is not like he ignored that he in fact spent a lot of time on that question of whether that letter takes us from no hearing needed to pushing to serve the br patients who are seriously ill at this point he sent it off to isolation and basically banished it from his consideration because what he didn't consider  opinions aside if you weigh the opinion of the anderson court and if you lay judgment writes opinions aside side by side they don't look the same and i think the overriding problem with judgment brights opinion is that he just doesn't look at this letter he just basically says i don't care i don't care about all those other fact findings or all of the ties that were introduced by this court   and nine drug transactions for whites that's a great issue and it would matter if in fact that mattered at all it's not the issue of whether the drug transaction took place i the issue of whether mr anderson was present at that for a killer app that drug transaction that took place because it was mister it was mr adams letter that  deal with a mexican national lame but dino mr adams said that didn't happen before mr adams said that didn't happen after that but yet that fact lost upon the court he just says d d what just doesn't just if it doesn't just prove that that transaction took place but that's not the issue the issue is whether that testimony was brought forth by government intervention through mr adams and then presented to the jury because i can think of no more damaging information than placing mr anderson in the presence of a large amount of drugs and there is simply no other evidence that concerns mr anderson and dealing methamphetamine so little you then will just say the weirdness of this document which the judge does spend a lot of time on whether again grave with it or not certainly doesn't ignore page three of three when we don't have any other pages you know the different writings the thing there's a lot here it's a very strange document what is wrong with the judge's analysis and that strangeness the the problem is is that d which is to cry by the supreme court and the case of march of proto which i cite in the fort basically deals with this person issue in that matter the court was faced the supreme court was faced with an issue of a defendant highlighting a breach of plea bargain and he had brought it he couldn't bring it to the attention according to that defendant because he was being coerced by the u s attorney's office and the desperate court judge by judge mcbride here and said that it's false well the supreme court said and i think this court should find that it's not the duty of the district court to make these judgments by affidavit it is the duty of the district court to find these matters either corroborated or not and in that case as heater we could look to visitor records we could look to mail records we can look to other sources and specifically they said this not by the pleadings in the affidavits but by the whole of testimony must it be determined where the petitioner has carried his burden of proof and shown his right to discharge that's supreme court that's the overriding problem with juggling bride's opinion is that basically he just dismisses this out of hand and that's not allowed by supreme court law this is a matter of if claimed let's go have a hearing and figure that issue out that's what the hearing the evidence you're hearing is and is supposed to do and in view of basically just outright dismissing all of this well it's just the right rantings of a lawyer in waco that's not the issue the issue is if it's if it is if it raises a question that t is simply offered no rational explanation for any questions surrounding the letter but even taking the letter at face value so basically he identifies the letter no explanation is given for the notation its language is most c it's incredible that the purported author articulate articulate states the us attorney poached me on how notably the attorney's name and address failed to appear to be written by a different hand in different writing implement see it yet so mr snyder he also didn't refer to waco or anything this is just a colorful explanation that he's basically saying the lawyer wrote this or that or the person because they're not articulate enough to have written it wait the way it's written isn't that which it was just your colorful way of saying that if you want is that right i guess one to classify it as that but i tend to when i was focused upon that at the time i did not trying to just say the situation but the situation is that he's basically saying that the lawyer must have done this because the guy couldn't have done it himself ok and that's and that's  and i think that you know in looking at the prior cases that i cited in my brief he would have these cases going and i will if nobody in the world would believe these types of claims and if they are not provable to the question that judge haynes had about a lot of the case here my reading of the prior panel's decision was sending this document back to judgment brian saying does this change the calculus in whether or not a hearing is required in this case and judgment brights the answer's yes or that was no and in doing that he didn't just set that letter aside that there is a detailed analysis of the letter itself and then also taking that letter in light of the remainder of the evidence in the case and so you know also it in taking the letter in his detailed analysis of the loader wouldn't that have been helped by an evidentiary hearing because he made a lot of conclusions about the love letter itself that that the law for example that the lawyer must've had a hand in it because the because the guy wasn't sophisticated enough to have written that phrase about being coached why isn't that something how could he make that conclusion without the new evidence you're hearing i think what that initial part of his analysis is looking at just as he would at least as any of us would looking at the liability of a document being presented as evidence and here we look at the fact that it's not sworn that he observed just a bright observe these other sort of discrepancies within the document itself but the lawyer have a chance with the client have a chance or someone have a chance to say no judge i didn't ringback write that myself i mean that was written and the lawyer said you know i didn't write that that's not true i mean that's it they're being accused of manufacturing the letter shouldn't they have a chance to explain that they didn't main effect or the letter well i don't read the discussion it doesn't rise discussion on that point as accusing the accusing the lawyer of manufacturing this letter i think is that i don't think it goes that far but i think it's important to remember here that the burden is always on the petitioner in a two thousand and fifty five and part of that is you provide the core with the best evidence if you're responsible for the form of that evidence and here the evidence that was provided was not sufficient to change the calculus and to require hearing  think it was very important here to look at is that even if as as just a broad set of his decision even if we accept what mr adams is saying on its face when you compare that to the remainder of the record the record conclusively shows that mr anderson cannot prove his claim the record as it the law requires that evidence you're a hearing i'm certain there's try that again by statute and evidence here hearing is required unless the motion and files records of the case conclusively show the prisoners entitled to no relief and this court has said that analysis requires the courts to look at those the records supplemented by the trial judge's personal knowledge or recollection conclusively negate the factual predicates assertive in support of the hades motion any here big the because of the nature of anderson's claim he has to prove that the testimony was in fact false that the government knew it was false and that the testimony was material and here the record conclusively negates that anderson's assertion that the trial testimony was false as this trial testimony and being present at the june th two thousand and nine drug transaction between thomas gerry and alfredo in indiana which occurred at thomas jerry's home i think mr schneider may have been confusing it with some testimony intercepts that were taken in this case and even more importantly by da surveillance the da surveillance team puts mr anderson at mr jerry's house that day and he was there the entire time that that drug transaction occurred he was there when alfredo media arrived he was there when adams arrived and he they did not see him leave what was presented to you and did not rule that way so the law the cases what was there on the st you'll want to know and the question of this letter they also didn't find sufficient to mandate here and they found it sufficient to take another look now my question is if we were to rule that this wasn't enough then this is not an affidavit versus affidavit case this is a kind of unclear random document case that  would because it in many other contexts in haiti isn't even net and other sorts of underlying issues when we're talking about a hearing whatever affidavits from reliable rd parties in deciding whether or not an independent indicia has been shown makes judged mcbride's and alice's the face of this document even more prescient i mean it's it's not the document is on sworn it's not particularly detailed it doesn't say for instance when this suppose a coaching occurred and who was present during its and the kind of detail that is typically original ruling was twenty four g b well it decision was i think two thousand eight hundred so kind in the middle of the appeal a just there's just a lot of questions resented by this drawing the question is looking as i said looking at the face the document it it calls into question whether a hearing would even be required i would also turn to the lack of detail in it as i said before it doesn't say when this supposedly coaching occurred or who was there or what happened or what was said and that's very different than cases like the match abroad a case that anderson cites to in his brief in matches broda  also tied those meetings to specific decisions that he made about pleading guilty into specific court appearances and so with those the fact that there are those details specific allegations made it necessary for the cour hearing in that particular case that's not what's happened here here we have an unsworn detailed statements and when that's compared to the record put in place it into the  record the remaining record conclusively negates the factual predicates that anderson has to show i also want to let me ask you this if we were to conclude time we were to send it back absolutely there's i don't read anything in judgment prize decision to be a criticism of mr trier it is a criticism  document itself and i cite from his comment on the record citations there with the rest of that is just doing what this court asked him to which is to look at this document and see whether it changes things  don't think he's insinuating that mr swagger dissipated in some sort of broaden this document that has identity waiting that between the lines i do not you think it's unreasonable that mr swaggart s that see that reasonably as a lawyer i see that but i don't i just don't i just i just disagree that that's the case oh jeffrey bright is a very straightforward is is a very serious they and as you said that you know judgment bright is is very plainspoken if he believes that you're misrepresenting something or even even things like if you get a citation wrong he will call you out court over things like that so i think if he really but had believed that it was manufactured by mr swire he would have said that he would have referred him for disciplinary action but i don't think that was i don't believe that to have been the inference here so yes i do believe that this case if it is returned for an evidentiary hearing should go back to judgment bride and it would have a full and fair hearing and he would make a decision based on that additional evidence in light of the record as it is do you have any further counsel i actually would like to turn really quickly to the nd item that   says that he has to act prove that the government actually knew the testimony to be false and that it's a very strict burden and you know anderson points to that two thousand and nine letter that mr adams wro shortly after he and the rest of the defendants in this case were arrested and says that proves the government knew it was lying what that is it what that proves is that there is a prior inconsistent statements and this court has also said in a couple of cases and cases this court said it is not enough that the testimony is challenged by another witness or is inconsistent with prior statements miss mitchell those cases are in your brief i believe they may not be  actually ok will do but you had the sites all ready to go to tell us today even though you didn't put them in your brief yes i did i apologized and to mr swagger of the head before the argument today i did not was do you think that was ms mitchell if you become aware of cases before oral argument that you plan to use you need to provide them to over opposing counsel regardless of whether they're brand new cases or old cases i apologize your honor i will do that in the future t you you prepare witnessed it is for testimony all the time as a lawyer and if they want to call that coaching that doesn't necessarily mean you told them to lie meant that you were talking throughout question might go how they might be cross examined and so on that's the that's all right we will get an answer from him but what we do have in this record is that the testimony from the case agent and he testified at adams his sentencing hearing and this this is in part of the documents that i supplemented the record with that he was specifically asked by adams's attorney diva leave his trial testimony was truthful when he said yes so we have sworn testimony from the case agent who would have been aware of the entire investigation be involved in the investigation that he believes that mr adams is testimony was truthful so as i said i think the the record conclusively show negates the exalting form over substance and basically it's not the question of what the letter if it's in the proper form d or fit has altered and i wasn't trying to suggest you had to have an affidavit i was simply saying it was not a matter of contradictory affidavits and let me just ask you what about the other term coaching which again people use in a lot of different contexts but it doesn't necessarily mean you were told to lie where in here does it z did it then i'll be off the hook and i'll get a little bit of a better deal on my arm robbery or whatever where does it say to the contrary of that i believe that this court against concern in the incredible and he stated that well they would had to go up to the jail the attorney would have had to a been there yada yada yada and all of that the courts as extra record we really don't know but i  i believe that is also could also around the surrounding circumstances that were laid out in the district court's prior opinion that basically there were several contacts around mr adams at the time confirmed by other persons at the jail and that basically the u s attorney and other persons were out there at the jail interviewing now that might be unremarkable in the common sense but it's certainly remarkable here that we had a letter before he testified i made this stuff all up he then testifies to the opposite of that saying mr anderson forced me and now we have another declaration by the same individual saying no made all that stuff up and so it certainly seems i mean again just as you don't want to be accused of faking this letter which i think is totally fair on your part you don't want to accuse a lawyer of telling someone to lie just because they eat with the person and talk to them about how the direct testimony might go how the process in my son's examination might go prepping for which he happens all the time and these are wonderful questions that should not be answered by affidavit and i don't think this court should lose focus on this particular issue we're not here to solve the matter of what exactly happened at the jail the question is whether there is sufficient evidence to raise the on the low bar that is set by the for evidence for hearings in federal court it is there any evidence that proves that he is conclusively entitled to no relief that is not what occurred in this case there is some evidence as to that and then all of these other issues can be hashed out of the proper time in front of whichever judge this corporate puts us back in front  appreciate d the fact that i am a able to appear by this court in this remote manner i appreciate the court's questions and i would ask this court to rule in favor of mr anderson thank you counsel we appreciate the arguments of both sides in this case they have been helpful to the court thank you to both of you and if i might add your honor ms mitchell the presentation of that new case would not have swayed my arguments in any manner although i did want to add your honor if i could briefly your court deputy has been extremely helpful in setting these arguments up she has been absolutely wonderful and in being available to answer all questions and to run us through the rules to get us here and i would compliment your staff highly on the way this has been carried out we appreciate that feedback we concur wholeheartedly that term