corpus underlying the application are two brady claims and one both of which deal with critical evidence against my client  zero evidence that was introduced at his his trial in monterey county california the the suppressed or non disclosed evidence concerns a witness named one going to use the same terminology that was used throughout the case rather than his given name i'm going to call on memo because that's what appears in the well ok pen we have pinetti the supreme court considered a claim that could not have been brought at the time of the first tape b s petition because it did not exist here the factual predicate existed at the time of position he just didn't know about the alleged brady evidence so why is that not dispositive dispositive distinction well with the with regard to the gauge case i mean it's an open when i am what i would like to to argue is to move past gage in as much as it say an open question and there are two other cases on the calendar today that are going to directly address that and address the statutory criteria under twenty two forty four ok but why did the text of twenty two forty four is a problem for you because it speaks directly to a situation in which the facts existed at the then no one could ever ever raise a brady claim under twenty two forty four because here are the reasonable diligence was the diligence that should have been undertaken by the government to reveal these days to some or those two sets of suppressed brady material instead it was diligence on behalf of my client who had to invoke california discovery procedures post trial to unearth four thousand pages of documents and to discover these two sets of brady materials hidden there so with respect to that diligence and then my client was very into the record i'm at trial because he said he and remember when he when he got sick and so the whole thing with plants aka is that well maybe there was a thirty eight maybe there wasn't is that the big is that the no there is that the key impeachment from the take number one showing that he was angling for favors from the government when he was interviewed by the two two officers at three o'clock in the morning and they were trying to get him to say that my client had a thirty eight revolver he was that goes to the fact that he was working or using going for favors which is a classic impeachment brady type violation capone he wouldn't have the balls to do it he doesn't do shit excuse me shit like that that that's exculpatory right there but it doesn't appear in the police report it doesn't appear in the notes and it on my client to go for the tapes the burden was on the government to produce them your client had no tape no burden at all to use due diligence to discover possible impeachment material well he did but i think that the police report can say there are tapes but if the tapes were not turned over i think a reasonable assumption is that they did then no longer existed or they were copied over or something out into them because it wasn't the client's or the client so i mean you have all of it we have the hurdles that we say in the first place but there's always an option for people that can make a prime official case of innocence to get before this court i mean it's just but you're trying to get here otherwise you're trying to get around twenty to forty four and as far as that goes right well done trying to get around it i'm trying to say that we meet the we meet the elements of it and i think we meet the elements well i mean it's a cumulative problem you've got the the memo informant issue you've got the court the california court of appeal writing that the trial court could have reasonably assume or decided that memo was not a police informant and then it turns up after this you go through these four thousand pages of disclosed documents that there were five police reports showing that he was angling for favors and getting favors before even testified well he was impeached but a lot of he hardly came off as a boy scout well but none of these i mean guess none of these guys were boy scouts i mean given the nature of the case but he wasn't a ph d was he had a criminal record like good morning pam critchfield for the state of california petitioner must make a prima fascist showing that the language of twenty two forty four b two b has been met and he simply has not done that the evidence that he has put forward is in a cumulative impeachment evidence as far as the the main witness whose name who goes by the name memo where in the record is there any evidence  to my opposition i attached officer so leases testimony and he says on the record and i don't have the page cite for your honor but he says on the record that that fixed driving on a suspended license and apparently he got that did it witness got that ticket and gave some information over about some stolen vehicles and then that ticket they ended up making that ticket away that was not disclosed the defend the the trial was actually in santa clara county and the all the people were from monterey county and for whatever reason the d a did not get those reports according to his declaration so all right if you look at gage that this court found that the petitioners brady claim developed quote unquote at the latest when the state trial judges close the contents of the victim's medical records why shouldn't we read gage to mean that a brady claim ripens only when the facts supporting the brady claim are disclosed as opposed to at the time of trial because  you would have to broaden the rule internet than to say that the claims that it's a permits claims that were right those facts existed at the time of trial you would have to broaden the rule so that so that the facts were right claims that were right at the conclusion of the first table or something attention there was a little bit of tension between gage and then i fact those facts also developed at the time of trial right they said it but but at that if but when the court said at the latest when it's sort of is that just  gauge just specifically on those the facts of gauge were it was very obvious that that petitioner had known about that's what i believe that the court was commenting on that that that petitioner knew about those medical read those victims that victims of medical reports at the time he brought his new trial motion i believe and i think that the court was relying on the diligence a prong of two to four for b to be to say you were this case well ok then if you look at mack would meg wood says there are seven justices agreed that a petitioner must have had a full and fair opportunity to raise the claim in a first petition for a later petition to be deemed second or successive so how can a petition or have a full and fair opportunity to raise a brady claim in a first petition if you didn't even know about the suppressed evidence that was the dissent wasn't in my good that said that it but it was were there seven justices that said you have to have a full and fair opportunity so i'm asking you this down well that language i agree is is somewhat  confusing the statute twenty two forty four b to b if you read the literal language you can get through the statute a petitioner can show a make a prima fas showing of the diligence and the fact that the evidence that he has or she has would would show clearing it by clear and convincing evidence that they were actually innocent what what do you have in here arsenal to say that congress meant in passing twenty two forty four b that even a petitioner who couldn't find brady material which was suppressed by the government is subject to this stronger review that he has to show basically actual innocent he just doesn't get a new shot even though the government withheld the brady material i know this is what they want to do as far as congress goes yeah no ok as far as the court i could compare it to the pinetti decision but so you're going with in the interpretation of it  else and why we might need a published opinion and because someone needs to say something yes and you know either it's what you want to say or whether it's what needs to say something to think that mr issa laurie out didn't even get past the first hurdle diligence or do you think i argued that and i i stand by that but even assuming he didn't he got by diligence i would say he  certainly didn't get it didn't get by the second problem and honestly he did not get by the if you just if you look at it on a brady analysis he didn't get he doesn't get by that because you find it's immaterial or irrelevant or i think immaterial it's just not prejudicial it's cumulative impeachment and fun seka knew they knew that that the distance the tapes the fact that there were tape recordings of his interview was disclosed in the police report are you saying with regard to solara oh that we don't need to get to the second prong of the twenty to forty four b problem the actual innocence pronk no i would say no says capital defendants and lifers can see post trial discovery you know it's not something that appears on the front page of the paper or on the news reports and he learns about it as he says in his declaration that we filed with the reply he learns about it because he had heard through the grapevine that some people had recanted at that point he asked what do i do and as soon as soon as he finds out have a federal defender but are you a pro bono counsel now and she j c j ok well i always just like to thank counsel for taking these cases it's helpful particularly when we need to publish thank you