conviction and as a result the district court should have looked past the time bar that otherwise would have applied to his petition now the record before the district court contained ample indications that mr pratt was innocent but that record was incomplete because it did not include the pre sentence investigation report which is a crucial document in this case so because the district court record the state court record before the district court was not complete the most prudent way forward would be for this court to remain and back to the district court so that mr who is now represented by counsel for the first time since his direct appeal can assemble the entire state court record and all the evidence of his innocence and submit that to the district court in the first threshold question for you to make out an actual innocent showing here you need to come forward to you with new quote unquote new evidence that's right your honor and so when we say in the guilty plea context that evidence that your client already had through the time of sentencing can't be de new because it was by definition available to him as a basis for moving to vacate his guilty plea all so whatever information was already a part of the state trial court record up to the time of sentencing i would just think that by definition can't be deemed new in this context and i would like to hear your response to that because i think if you can't get past that then that's you don't have anything else other than the p s r that you're relying on right sure that i generally agree with that but i have to responses  first is that even if there isn't any new evidence in the current record before the court there is excellent reason to believe that there are documents and evidence out there that would constitute new evidence by anyone's definition and if you look at the pre investigation report it contains narrative summary of the offense and presumably the probation officer who drafted that was working off of products of the state's investigation like police reports witness statements and other materials and those documents have not  been made part of the state court record at any point in the proceedings and so those documents would constitute new evidence are you contending that your client didn't have them i think that's what trent lott for it's getting at well the my client did not have his file it appears until twenty sixteen so i'm not sure what of the police reports and other documents he had at the time he was litigating this case on his own but i think under this court's griffin vs johnson decision the question is whether the evidence had been presented to the trial court and those police reports not not not in the guilty plea convict i guess that's why i recognize we don't have clear precedent on this i'm just sort of reasoning through just as a matter of common sense in the guilty plea context you're not going to have evidence presented to the state trial court because there's no trial that's right so anything that was turned over to your client in discovery which i certainly would expect police reports witness statements like and any information that got turned over to him through something which wou d of course include the p s r that to me is that stuff that he already has that cannot none of that can be new new would be if maybe if you came forward with evidence that hey we've discovered i don't know that there was a witness statement let's say from the victim that was never turned over to us and actually contains this very story statement that i could see would be new because it would be outside the confines of the guilty plea record great in the state trial court but you you don't have anything like that here that's what i guess i'm getting stuck right there and i need your help to even get past that well i think the court's decision in griffin versus johnson is pretty clear on this point it's a guilty plea case and it says that newly presented evidence is evidence that was not presented to the trial court and again the police reports and underlying products of the state's investigation were never presented to the trial court now i agree with you that there is some there's some tension in applying and you have it in standard in a guilty plea case where no trier of fact has received evidence and discount evidence and but i think griffin is fairly clear on that point and if you know this court is interested in creating a new standard for that it would have to be on a non bank basis i'm not confess i'm not familiar with griffin so what was the nature of the evidence supposedly wasn't presented to the stakes are so that was a that was a murder case and the client had told his had told his attorney before the trial was sat that he had mental health records that he believed would show that he was insane at the time he committed his offense and as a result he was not guilty of the murder and his his defense counsel did not use that material did not introduce it to the trial court and and that the visual eventually pled guilty and so the griffin decision says that those mental health records work which were in the petitioners he did have access to those in fact he is the one who showed those to his defense counsel before he pled guilty but the the court in griffin said that that was newly presented evidence for the purpose of the actual innocence gateway analysis and that's very similar to what we're asking the court to consider as new here which would be the the police reports and anything else that was in the state's investigation i mean i gather in griffin the person actually came forward with the records right he wasn't just speculating as to what they might contain that's right right and that's what i'm saying here if you would come forward i guess was some kind of new witness statement police report something all you've come for those with the p s r and to me i just don't think you're go even under the griffin standard i don't see how you can say that that wasn't that that's new because it was presented to the state record sure well i think it's important to keep in mind that we were appointed for the first time on appeal and mr pratt was proceeding on a pro se basis below and he it appears he did not get his file until two thousand and sixteen after the district court had dismissed his petition so he didn't really have the opportunity to fully develop his claim and amass all the potential evidence of his innocence and submit that to the district court in the first in that's why we're asking for remains in this case because if you look at the p s i i and all the indications in the sensing transcript that appear to corroborate mr pratt's account that he did not intend to kill the victim that gives excellent reason to think there are materials out there that have never been made part of the state court record and if we have the wealth my those issues really new evidence just new arguments about evidence it's already well no court has looked at the underlying police reports and other materials like that mr pratt hasn't had the word there that's what i'm saying the evidence this is not new evidence the evidence was there if i understand your argument you are saying that th to a place of safety and that's why he instructed her to climb down well that's really an inch or leave going to find that no jury would find otherwise and they'd already stabbed her they drove around for an hour talking about how they're going to get rid of the body i mean it isn't the type of thing i don't see the big evidence there's new evidence that that would be considered i just it just seems to have an argument have his evidence of what they said and what's already there but it's not new evidence is just an argument of all the evidence isn't there a difference in that well again i think griffin says new evidence is evidence that wasn't presented to the trial court and we believe that that evidence would cry operate mr that would find you a person not guilty that's right and we believe if we have the opportunity to assemble all the evidence and show all the evidence to the district court that's what the evidence would show is that no reasonable juror would have all the evidence that we already know about because it's in there but hasn't been argued well no one knowing again no one has seen the police no court has seen the police reports and other materials and were asking for the chance to develop that record below and i see i'm eating into my rebuttal time unless they're for the questions it please the court my name is matthew johnson i'm a deputy attorney general for the state and that representing the respondents upheld these in this matter new evidence is unavailable in the vast majority of cases that's what the supreme court said stated intially up mr pratt asked this court to find the opposite that all evidence is new evidence where petitioner enters his enters a guilty plea and then later asserts his actual innocence that decision would completely undermine the finale of judgment of conviction in the vast majority of cases which are judgments and or pursuant to a guilty in all of the cases in the circuit we've asked this court to do one of two things either correct the decision and griffen or clarify this isn't in griffin as the court recently said in davis fractured opinions are supposed to  be apply a reasoning based approach and griffin the court acknowledged that justice o'connor's concurring opinion could could have been controlling law but then they deferred to this court's precedents a footnote and reinterpret the decision and of course the court didn't have this course is it in davis to guide it it now does in griffin the court admitting that justice o'connor's newly discovered evidence provision was the narrower of the test from the  plough he was broad that just o'connor's was narrow and under the reasoning based approach of davis it compels this court to find that newly discovered is a proper test for new evidence because just o'connor's opinion is controlling law and i believe this court doesn't have to take this on bach because davis and the actual statements in griffin go go together in this court doesn't have to go on bach because davis compels this outcome if this court's not willing to go that far why do we need  i think because the supreme court spoke in this case this back pattern this is a fact that involving hypothetical new evidence that might be out there we don't have any new evidence right we have ralph i think a very fervent  earnest plead to allow re man to go get a police report or the other foundational documents that must have gone into the p s r hoping that there will be no evidence they're right in there and that was even raised before the district well i think because the question is what well if you don't do that then the question is there in the circuit there's tons of new of the actual innocence claims of all the guilty pleas and there's no law other than griffin which just says nearly presented doesn't explain what they mean by newly presented in the context of a guilty plea to guide all of the cases they're going to end up coming before this court we need clarity on how to address what new evidence is in the context of a guilty plea otherwise we're going to continue to have arguments made by like those in a bit by mr pratt that all evidence is new evidence because there was no trial yes but at least then he might have something to get our arms around that is in fact presented to the court as opposed to what we're dealing with here is i think a hypothesis right pretty speculative but i still have the new evidence out there i still think this court needs to clarify what griffin meant when it said newly presented evidence to the trial court or whether it's newly presented evidence  specifically he pushed me when i reached out for the branch and she fell head first in the river but to be fair what we have is not even that right now we haven't a victim advocate summary of what the film said no your honor she wrote it she just asked she didn't feel comfortable reading it in front of the some kind of an investigation i think the most fruitful avenue of course would be to try to find the victim and basically ask her if in fact the defendant said the things to her as they were walking to the bridge or the tree that he claims he did because if she said which things you are sorry that i don't want to kill you this is how you're going to save your life basically because i'm not a trick my codefendant into thinking that i did kill you but so this is what we're going to do you follow me do this that's that's his version of events that's what he says he's not guilty of attempted murder because he never intended to kill or if the victim were in fact to cooperate that by saying yeah actually he said all of those things to me that would be new and that would be potentially helpful to establishing actual innocence right but he hasn't had his complaint to be look i've been locked up i haven't had counsel and i need some help there's at least maybe the p s r gives us some reason to think that she might cooperate you know my my  version of that so at least give me a chance to investigate i think that's it's best pitch you're right i don't think the p s i gives any indication of just explains that the the officer who's part of the division from probation wrote a report to help with sentencing and it doesn't say that he didn't push her off the ridge just says she reached out and she fell over so that doesn't that that the an omission is not evidence of i'm sorry is not evidence of a positive  fact that so we don't have any evidence here other than his belated statements now after several or iterations he's been working on this case and and finally he's he's now saying oh wait you actually explained to her that this was going on that wasn't the what he said before he just said my attorney relayed my hearsay statements during a sentencing proceeding that my memory after i was on a seventeen day drug runner was that i told her that i didn't lie i told my attorney that i didn't want to killer so they're all relying on is his statement eight years later after he had a lot of time to think about how he's going to get out of this conviction if that's all you need to have an attorney pointed for an actual innocence claim then every single person who pleads guilty is going to be saying the same thing they're a cup with some statement that says ok maybe we should appoint counsel in this case to get their claim which is supported by any new evidence and that would be a huge where he admitted in a signed guilty plea that i attempted to murder her i commit a first degree kidnapping and i committed robbery and he didn't raise his actual innocence for seven years so we don't believe the approach appropriate in this case just briefly two points if i can get to them first i want to emphasize that we were appointed for the first time on appeal mr pratt was pro se below he requested counsel he explained in his request that he was being held in a very high security level at what's already a very secure prison he was having trouble getting his state court records and he really needed counsel in order to fully investigate his innocence argument the respondents oppose the appointment of counsel below and the district court denied counsel at the same time that issue we think based on the p s i i and the indications in the sensing transcript there is strong reason to believe that there is new evidence out there unfortunately we're limited to the record that was before the district court and we've asked the court to take us for notice of a few state court records as well but we weren't able to supplement the record with you have events but we have excellent reason to believe based on the current record that there is new evidence out there and we would like the chance as you found the victim and talk to her well we've received it because just to be clear i think there are only two people who know what was in the critical moments right and that really is the i mean if your client were to somehow prevail on this he really would need her to cooperate his version of events with me i don't know what other new evidence would be out there that would help well that would that would certainly help and that's something we would be interested in looking into but if the victim gave prior accounts to the police that verified what the p s i i says even if her story is different now that's potential substantive evidence this court so so you're not you're not you're not asking us to send it back down on a basis of of new evidence you're asking us to that somehow there was some error committed that he should have received an attorney earlier and have he had the attorney might find some evidence are you suggesting there's no new evidence in the file as it stands now in the record before the court i think there is an argument that the p s i i in the sensing transcript are new because they post state the  the guilty plea call queen griffin talks about new evidence being evidence that wasn't before the trial court at the time of the guilty plea coffee but our main argument here is that even if there is no new evidence in the record on appeal there's excellent reason to believe that there would be new evidence out there and mr pratt you have your your argument now is that there was reversible error took place early on when i don't lawyer was an appointed well our main argument is that the district court  that somebody made down below the didn't give me a lawyer you we can't just say there may be something out there so what what how would you write it if you were writing it for us telling that these people that they let me ask them for a lawyer committed error that we now in the federal court are going to try and take i would say that the the primary reason to reverse is that the district court decided this case without the pre sentence investigation report which is a crucial document the corroborates mr pratt's claim and gives a strong reason to believe that there is additional evidence out there