will be allowed to have the merits of his petition decided there has been no hearing in the federal court to determine whether he is entitled to the shlep gateway regarding actual innocence to proceed with his petition mr al has presented solid credible and i'm rebutted evidence showing a reasonable doubt as to his guilt or innocence and he has also exercise due diligence in getting that evidence before the court you can ask about the due diligence for such a show so basically the thrust of roland part of the district court decision and the respondents argument is that mr alcott essentially didn't do anything for some period of time two years or resulted in him finding all this evidence why didn't he do it two years earlier so that's really the question if you look at his testimony at the evidentiary hearing when a d p a was enacted he did begin again i mean he had prior to that he had tried and he decided what he needed to find to help and he needed help on the outside and that he would look for biological family emerges as the reason why he didn't think that the adoptive family could help the ones he was you have to look at the facts i mean he was adopted when he was thirteen his adoptive family rarely visited him at the time he hardly saw them his relations also maybe some question about them not having financial resources and they absolutely did not have financial  resources when he finally did get the courage to bring that up to the outcry axis would you help me find biological family because if it doesn't seem that you can help me they did and eventually they found the sharing tissue who then got the ball rolling and then things developed the most crucial development then being that when rick last three waived attorney client privilege and allowed me to have access to his attorney file and i compared that file with mr bail style that's when you found all the recorded conversations basically which were not only the recorded conversations but the interviews i'm sorry her name scaife see right now but the defense investigator more than happy to turn over to me and said he had been waiting for a long time to be able to do this but he couldn't he couldn't give that information over to mr al crossness defense attorney at the time because it was a violation of attorney client privilege and as soon as mr last three waived that it became available and opened the door to us to getting so much information and that information only growing and growing group i mean after jett only partly get back to th first period because i mean basically they think again the district court's decision on due diligence really turns on the period between april of ninety six and whatever the due january ninety it would have the date is and so basically what you're saying and i think what you're saying just now is that it cox a while to sort of get up the courage to do what he needed to do is that due diligence that's really the question that is due diligence when you consider the circumstances of him being in jail first of all in jail you can only information about that by getting his former lawyers while we could have he could have written to his former lawyer to get the file and he didn't do that but by that point his former lawyer had been so totally discouraging in telling him absolutely we are not going to put up we cannot put you on the stand you have to go with your confession these alibi witnesses will be totally discredited when the i thought the former lawyer had died by the time at petaca fact he had as a matter of fact so if the net and the first opinion from this court says you only consider able to on ninety six on if mr cox said written as a lawyer then it would come back saying no such person well i might have gone to you know his lawyers wife who had taken over his firm and he might have gotten the file on me to be totally frank with you but even he got in the file there was almost nothing in there even asked to hear where he didn't even have all of the police reports that judge boise had gotten in discovery when he was representing mr loss rate only if gathering of that those place reports were in there mostly mr bailey file consisted of the eighteen month about eighteen months you did nothing what what would we have to do with that right all right you do so what would be your suggestion or argument for how that he had very limited phone availability and taking that into account he still did nothing well he did contact if you look at mr alcott says testimony at the evidence you're hearing he contacted not only self in our salvation army but other sources to try to find although unfortunately we didn't get into what exactly the other sources were but it was more than salvation army to try to find biological family and then finally he got the courage to talk to pat al cox to say i need i need somebody i need somebody out there so yes he did say i mean and when i read the transcript i mean he did say there was a question  the information that you would need to file a petition and he answered i needed somebody outside to help me i need somebody who could go and find and bracket witnesses and then talk to them interview them and give them and give written statements i tried it on my own at first i tried to salvation or me army and so forth they like total resources for doing such a thing and so i knew i needed to contact my biological before that was not the easiest thing for him to do considering the circumstances of his adoption and his relationship with his adoptive parents at that time for as the lawyers file is concerned your point though is that so first of all we're talking about due diligence to get evidence to support the claim the claim isn't that he had alibi witnesses the claim is that his lawyer didn't investigate the alibi witnesses and why demo both of them in there was nothing them warriors file that would have told them right there would actually be two claims first of all we have to remember that true in federal court but it's particularly true in state court the state will not interchange successive petitions so you have to put all of your claims in one petition he had two things in state court you have  separate claim that i am actually innocent i should not have been convicted and you can get it reversed on that that's what he thought was his strongest claim because he knew he was actually innocent and he knew that rick law three knew that and then the second cla was the reason why i was convicted was because i did not have affective assistance of counsel my lawyer did nothing to prove my point is that if you had gotten the lawyers filed it wouldn't have helped him at all  for the second part of it because the whole point was the file had nothing in it correct correct and he would have to have something more to explain why nothing was in there that because there are two prongs to strickland one is my lawyer did nothing and two is there's prejudice if he had done something like it what he would have found look at what he could have done what he did do something he considered alibi witnesses part may be considered the fact that they were alibi witnesses when you look at all of the evidence as to what the lawyer did this is what the lawyer did the lawyer went to the d a and said well what about the alibi when even i don't even know if he did that i mean he went to mr outbacks and he said well the district attorney t me that they can totally rebut and impeach all these alibi witnesses and in fact in fact if you look at all of the evidence including what's in se on the investigating officer the wife nothing there was nothing to impeach them absolutely nothing so if he had done any and for any investigation whatsoever he would have found out that fact and he was so bad i'm sorry but you know i've been working on this case for a long time so i am very invested in that but he was so bad and i shouldn't point i've been told that in the past but he was so nice to talk a little  he was so bad that one of the crucial witnesses against mr alcott for trial carolina gonzales not only did he know investigation regarding her he didn't cross examine or not one question go figure where where where that's how bad it was that's how bad it was now the alibi witnesses in fact what i did find in the file for a family or a few of those force at the time of the incident shortly destruction and when it was just church they went home one went to missouri tennessee florida i don't remember where the others and we were told whether or not he could get through the gate way absolutely or the time period and under what supreme court  ninth circuit of authority larsen versus soto which i know you are familiar with and then we have the house case which i think is really important right right on this i mean when you division of the santa barbara superior court after the order to show cause and the traverse and all of that was filed we were ordered by judge garcia that we could not get into ineffective assistance of counsel all we could do was the actual innocence claim after all of the evidence was presented to the court and we were we did briefings on that we got an order from judge garcia saying well now i want briefing on ineffective assistance of counsel and that's my first sentence and my brief in response was well we didn't get to have a hearing after this so i would ask for a hearing but here is my argument and we won on that now he didn't find he did not grant the petition on actual innocence but the state's standard for granting a petition on actual innocence is far different than the s gateway and so there it and that is yes it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable that's the standard for prevailing i'm talking about the standard for getting very very hearing getting a hearing just a hearing give given how i'm to i'm trying to pull all the supreme court decisions on t still well in federal court you could there's no you you do not get a petition granted on actual innocence alone just get you through to the mirror get it gets you through to the merits you have to have a constitutional point and our constitution and unfortunately which when i speak to high school audiences and other people they don't understand how actual innocence cannot be a grounds to get haiti a scranton in federal court but it doesn't seem to be but here we  delay on it he does get to part as a factor in determining whether actual innocence has been denied be shown to its effect or it's not it's not a requirement from what you just read well it's a factor that should be considered according to push should be considered in determining whether actual innocence is exactly ok how about in getting a hearing oh this court posed the question is there any u s supreme court already for that and i have found none however this and in this case we have the same situation the evidence is not reliable definitely not credible and that's just setting aside the diligence in alone due to claim of actual innocence as an exception to the statue of limitations other another subject matter brought up by counsel in the court is the focus due diligence correct so the only period that was in of concern to the district court was that eighteen month kind of period from but it has each of the e d p a and when he contacted his  i don't think so your honor because the statute of limitations was enacted in ninety six and we choir's diligence and that's the whole reason there was an active gave to just petition one year more than enough time  but at the same time it required diligence petitioners who were not diligent and then allow that one year period to lapse would then be time barred so it doesn't make sense and definitely he's relying on the exception that when you recently should have discovered that he had a claim right right yes the extended the provision in the statute that allows for an extension of the sta basis for ineffective assistance of counsel claim until much later right until after he added the statute exactly right so the so one of the questions and in that provision is did he act diligently in i guess trying to gather the facts that would allow him to at least make a non frivolous petition right i mean this california tolerate frivolous petitions no california does not tolerate from his petitions but he court yes sure but had you found a petition earlier could have gotten the same ruling earlier and they could have found evidence earlier that that's the whole i think just  the problem here is one of the points which are opposing counsel made is that you had he you know you don't get to file a whole bunch of a b s petitions in state court you have to file one you've got this ability to fire the right to file a freestanding innocence claim in state court right so far and that since you can only file one petition it's not enough that he could have filed one you know said little mini petition here and maybe found out stuff for that earlier he had he had together as evidence for the whole thing and that couldn't possibly have been done within the time that we're talking about what's wrong with it or what's wrong with that argument is it focused on it focuses on gathering evidence this that you actually didn't say that two to four forty one d could a factor predicate for a claim have been discovered were due diligence not what's the factual predicate for the claim the fact there are several factors predicates for his ineffective assistance claim one is that he had an alibi no the claim isn't that he had an alibi the claim is that his lawyer screwed up by not investigating the alibi witnesses and by lying to him about them that's the claim the claim he knew he had an alibi the claim isn't that he had an alibi because the claim that he submitted in federal court which is a claim that twenty two forty one d one is talking about is the federal constitutional claim which is a claim of ineffective assistance of counsel and so the only way he can support that claim is by getting evidence the factual basis to factual predicate for both parts or for both you know for the deficiency part and for the prejudice charge and my only point is that he could have discovered these factor predicates sooner that was something that he didn't feel was necessary that time he could have done other things besides calling the salvation army he could have as pointed out earlier  didn't contain any evidence about contacts and that's again a federal claim is a claim of ineffective assistance if you'd filed a hey vs petition saying grant k b s corpus because they had an alibi he gets laughed out of court it's not a viable federal  show ineffective assistance he needed to establish he needed to have some evidence that the lawyer had contacted the alibi witnesses you not going to get that from the file share but he also had to show prejudice to support an ineffective assi right right right and the problem with that though the wall you runs into with the prejudice probably is that he had a confession he had a confession that he committed the crime and it was so you adopting the proposition that if a defense lawyer knows that his client confessed so key for him to throw up his hands and say well it's a loser we'll do anything because i'm here to tell you it's only practice criminal defense and nobody in their right mind you know where the calling themselves a that from but another another thing the petitioner could have done he could have contacted several other attorneys he had an attorney at the preliminary hearing before trial he had another attorney for his state appeal he could also have bring a little part of his his testimony that really wasn't fleshed out much but he did try he says i i needed somebody on the outside to help me i needed somebody who could go and find witnesses and i put in brackets and then talk to them interview them and give written statements i try to do it on my own at first i tried the salvation army and so forth they lack the resources for doing such a thing and so i knew i needed to contact my biological family and if that was his intention he could have done it sooner and that's it he admits that his mother had some of his legal materials and his mother after eventually reached out to a so all these events could have been triggered a lot earlier had he been diligent and there was no explanation whatsoever of him doing anything besides contacting the salvation army before doing what he eventually did that successfully got him he just petitions filed in the state court so anyway and his burden of proof here diligence did it and still the jury found that not credible so the last point i'd like to make there was something about it at the beginning of the tape the tape that was of the conversation at the evidence that lottery knew that they were being that there they were in the monitor in fact lottery testified at the state evidentiary hearing that he knew there were monitoring devices surveillance devices declaration later on well his declaration is not credible either at the state evidentiary hearing where he was testifying about the substance of what he said in his declaration he  declaration that from the very beginning of the case quote unquote that's what mr three said i think it often saw that as exculpatory because he was just simply it might but the point is it's consistent with the lawyer did mr voysey testify at the state hearing that you're talking mean you kilty he was trying to help you though does it i mean it's not it doesn't help but that's it's worse than saying that you don't even know do you were never there and you don't know what happened that's true that's true but i would submit though that that definitely would not be enough to convict somebody to pee at the crime scene because he could very well been a witness but he took it beyond that you pointed the finger at sanjay i was there but sanjay patel shot the victim i two hour more than two hour time frame for petitioner to be involved in it so i just like to conclude since i know it's my time is up to find the petitioner to find  petition in this case timely would defeat at buzz purpose of expediting federal hate b s actions and based on the record and the l cheshire definitely has not proven that he has presented any new evidence or diligence and certainly has not shown that he has presented any evidence at all that would convince that that would convince any court that there is that there's more likely than no reasonable jury would find him guilty beyond a reasonable doubt and therefore his actual innocence you have to remember that the actual jailhouse recordings for not presented at trial what they presented was testimony summarizing what one person said that she heard if you actually listen to the jailhouse recordings something very different cox did not meet the actual innocence standard but did he hold a hearing on that time he did not there was no hearing and we asked for a hearing and no evidence was presented so i'm not sure how he was able to conclude that  and we keep hearing from the state and we heard this from the da that all of our evidence that we are now presenting is unreliable they have yet to rebut any of it they have yet in fact when you look at judge marci i findings with what was we were able to present at that time he found that young mr garcia the witness i don't remember his first name rebutted carolina can dissolve this testimony he found that the jailhouse conversations were in fact consistent with a finding that lottery was surprised that alcoholics would admit to a crime he didn't commit we were i'm at that point we had not yet found the alibi witnesses we found the alibi witnesses as we were getting the caring for the new trial after the writ was granted they would have rebutted all of that there's nothing to rebut the alibi witnesses when you look at all  the five different alibi witnesses they all put joelle cards at a different site far from the shooting fame and the times vary somewhat and they're not all totally consistent but when you get five people to be totally consistent on every single detail that doesn't happen that they did the state the state so argument seems to be look he confessed what more do we need well we confession is as unreliable as confession to get when you listen to it it's hours and hours and micheline he says i was at a barbecue i wasn't there then they keep saying no no you were there you were there and he he's coming off of acid and he had been drinking to get down from acid and he began saying what i think i was there i think i was there and finally at the end he does confess telling what they said and let me give and it was to this standard for getting a hearing i'm sorry that i'm not clear on that if the court would like me to i would be more than willing to do further research on that submit further briefing i will we will look at that and