good morning your honour's may it please the court elizabeth allstream on behalf of the teacher appellant ricky benjamin your honour's this case involves a wrongful conviction wrongful in that mr benjamin is likely innocent but also wrongful in at the trial he had was fundamentally flawed by unreliable eyewitness identification deficient representation by a trial lawyer who is now disbarred a d n a evidence that wasn't subject to meaningful confrontation and also late discovered brady evidence that one of the state's main witnesses was paid thousands of dollars in i disclosed and other folks the the statement you made about the trial lawyer is that in the record that he was disbarred it is in the motion for judicial notice removed for notice of those records and and according to he was disbarred for misconduct and i believe a securities fraud case so that really has nothing to do with this case right well your honor if the court were to remain and and view the an effective assistance  case i think it is relevant that the trial lawyer has been disbarred i am having difficulty connecting that i he may have been really really really bad and securities law case but issues are on a piano with two people do you think we are required to decide this case rich issues there are three substantive issues that were raised on direct appeal they are fully exhausted and they are before this court those are the versus virginia claim a record based ineffective assistance of counsel claim for failure to suppress the eyewitness identification and then a third substantive claim on the confrontation clause for the admission of the d n a evidence claim well your honor the best case for our position on that is ching from the second circuit and it basically says that finality doesn't mean something different in a second or successive context than it means in other contexts that is when a case goes on appeal it's not yet final so if a petitioner files a second petition while the case is still pending on a few appeal that is not truly second or successive within the petition was capital he had counsel at all times he went all the way up on his first appeal and then backed down on a remain and then moved to amend the claim so he first brought his new claims in a much later and different posture because the judgment in that case been vacated pardon me that the judgment in that case been vacated no i think that it went up to the circuit court and there was a remained on a single claim and it went back down and then he moved to amend so let me think so are you asking for a limited remember yes your honor and with that have the effect of opening up the judgment or do we or would we have to  that fully litigated this but i want to find something else i want to do is i want you to treat this as a limited remained a tele district court to permit me to amend and that it's a second or successive year and i certainly understand the court's concern about opening floodgates to late petitions but i think the standard in twenty one of six that this court may remain and when it's just under the circumstances i can find the possibility that it just could apply to address particular statute of limitations questions we think the district court should address those in the first instance but we did make that argument in response to respondent allegation that there was any good cause because certainly some of this evidence was under seal in state court the evidence that this witness was paid was maintained under seal and the when did you first learn about the fact that the witness was paid our initial petition was based on a declaration from the witnesses son who said i recall that my mother was paid and we had to file a petition and get discovery to make sure that the what he saw was connected to this case it was in fact payment for this case and it wasn't until we got the police there prove that this witness didn't receive thousands of dollars in cash in connection with this case wouldn't you be able to present that s o s claim if it truly was new and you didn't know about it before order a petition or can bring i so west but the standard frankly is much higher it's significantly higher and there's always has to be a connection to innocence and there's not always a connection to innocence and brady you're used the word so this opens the floodgates if we were to grant the limited rematch that you asked for everybody with asked for this right your honor respectfully i think maybe several would ask but i don't i this is frankly a very unique case it's not that anybody could do it because it's anybody who didn't do it in the district court but wants to do it in the court of appeals it's limited to that oh you know it's somebody if it was it wouldn't have been timely in the district court it's not timely in the court of appeal so it does seem to me it is somewhat limited case and that doesn't mean you can do it but it means that there aren't that many cases in which this happened the third time limited case i would i would agree on that the but the brady issue is a different one and you know i think it's an interesting issue about whether if the state conceals evidence and you don't learn about it until after the time that's run whether you can be barred simply because just a concealed the evidence that  from the facts and this yes that's an interesting legal issue which i assume you're going to raise at some point whether now or when the state proceedings are exhausted and then you come back claim because the orders from this court in noted that it was related to the prior case mr shin they have some related issues and i just would like to address that for two reasons first williams first is illinois came out after the state court opinion was rendered so it is not clearly established federal law for the state court opinion second williams is  different in this case and that's a point that the district court didn't fully appreciate there are both d n a cases but in this case the d n a report specifically identified my client d n a as being present record had nothing independent to base her opinion on now in williams it was a much different situation because that d n a report did not go into evidence she did not rely on it for the truth  and she simply used that report in conjunction with other testing to form an independent opinion so the facts are actually very different than williams and going back to the state court opinion the main problem with that is that it ignored the fact that these d n a reports were admitted into evidence and it skipped over the question of whether there testimonial and so apparently look at them and the district court you know did not have the d n a reports in front of it either because mr benjamin was pro saying he could not put them in the record but putting that aside for a moment wasn't there an opportunity for cross examination on this issue there was opportunity for cross examination of the non testing analysts however that analysts didn't supervise the testing she didn't participate in the testing and she wasn't present during the honor respectfully the expertise lies in the ability can to conduct the test frankly any expert or possibly any lay witness could read the report into the record and that's what she did overnight any lay witness could could interpret the report and give it in and give it a meaning to the jury yet i see my time has expired make a sure go your honor frankly there was nothing to interpret in this report the d n a report itself said these tests were conducted mr benjamin's d n a was found on the hat present at the scene there was nothing to interpret and that report went straight into the record it was admitted as an exhibit the jury had it and the person who testif did none of the actual testing was not present was not a supervisor and that was all in violation of clearly established federal law but looked to say well at the time i'm not sure you're right but let's just say that all that true if there were cross examination that queried what relevance that might have to other you know was there anybody else's d n a on there and all those other kinds of things that could raise questions in the mind of the jurors i guess i'm struggling to see how the entry of this information per se creates a confrontation problem i understand that there was this person who testified had not done the actual analysis but you could still have gotten to that fact and raise questions about the value of  your honor they were able to ask some questions about the value of the evidence but the supreme court has recognized that the power of cross examination of forensic experts comes in exploring their own expertise their training their ability to conduct the tests and d n a evidence is and testing is certainly an evolving field and in this case this was a very complicated sample to analyze we aren't talking about a single vial of petitioner's blood it's a mixed sample it has at least three people and there were at least five other people who could not be included or excluded as contributors to the d n a that was found on the home and all i could have been asked of the expert right the testing expert and that is what effort that the one who put that evidence into the record here the nine testing expert could simply only read what the testing expert found and so benjamin was not able to explore the extent to which those test results may have been due to the poor training of the analysts who actually conducted the tests so i don't want to give us like you're saying that the really the only benefit is attacking that aspect of it not the fact that there might have been five different people's at one point that you weren't sure if it was clearly established at the time this rule i would simply point the court back to the text of monday's dia's there it's very clear at three eleven that where they want to put the reports into evidence they have to produce the testing analysts and i would also point you didn't say whether it whether or not it's testimonial right and the issue was testimonial is what was up in the air correct in melinda's yes i think it's clear that these kind of reports were testimonial and it's also clear when we even look at the dissent that the supreme court rejected the idea that you could have a second person testify in place of another justice kennedy's dissent so your position is that if if an expert reads the report of a lab analyst that by definition without any further qualification that is testimonial and there must be a ri confrontation of the person who prepared the initial report based upon the law that existed at that time other words prior to williams yes your honor and again i point you justice kennedy's dissent where he he posited that he said i under the court's decision today would it be possible for a lab to have one person sign all the certificates and appear in court and he says the court has already rejected this arrangement the court made clear in davis versus washington that it will not permit the testimonial and our citations were not clear in the brief in footnote one this court expressly stated that b d cannot use words to amend his petition after the district court has ruled and proceedings have begun in this court and again that whole thing advances the core principles behind of finality of judgment and judicial  now going to the issue on the confrontation clause as this core is well aware we examined this issue within the framework of and the deference given to the state court's decision important distinguishing factors between petitioners case and the lender's d s which petitioner has not demonstrated why those two differences are unreasonable and that the framework that this court needs to look at the state court first noted that there was no objection and that is a critical distinction between petitioners case melendez dia emphasized that all crawford issues must be objected to during trial and petitioners the in did not do that the second distinguishing factor is unlike in melendez dia's where there was absolutely no testimony no expert rendering any kind of testimony here we had testimony from the supervising analyst who was familiar with the test procedures and knew who the analysts warn knew how to read the reports and was subject to cross examination so when the state court decided this issue to distinguish petitioners case based on these two heavy period here and i'm not privy to that information and i believe it's being litigated currently but even assuming that was the case that only goes to her testimony and and nothing and with it within that context you gave this no opportunity to raise those kind of claims that came after the fact and if the petitioner discovers these claims later on no not a whenever that's worth you and i would i would point this court's attention to its decision in and in gates versus appellate where this court held that there was no no type of brady exception and the requirements of invision that opportunity where those claims where it reaches that magnitude that petitioner is still entitled to have his day in court counsel  finder stand if i understand what you're saying you're saying that in this particular case that the issue of whether a brady violation occurred is being litigated is no concession on that is that correct in this case correct  the hypothetical i gather you're struggling with my colleagues question because of course it raises an issue of fundamental fairness if the state as actually intentionally concealed important information and you put them to the burden of an s o s it's troubling but i gather your position is this is an issue for another day because we'll have that here yet this is all a contested issue there is no conceding that there is in fact   your honors i have three quick points on the failure to object for the confrontation clause claim the reason trial counsel didn't object under melinda's dio's is because my honesty is had been decided yet direct appeal counsel raise that for the first time on direct appeal and noted that at the time california law allowed for this type of evidence to come in that was raised in briefing it's in the appellate supplemental brief lodgment five of the district court record second you asked whether the state is taking a position on the brady issue i would point this court to motion for judicial notice six zero two that is the state's informal response to our petition in that the state never denies that this information was suppressed they have simply taken the position that relocation assistance doesn't is not a benefit under brady it's a legal issue i think that will be the main issue in superior court  but you for our purposes you i gather concede we can't take what the government's response is short of an admission as being an admission of a brady violation at this point is that correct honor i think you can take judicial notice of the state's position in superior court but the reason they're saying it's not a brave violation is because not because of suppression it's simply that this money was for relocation and that is not a benefit under brady according to the district attorney's office finally i would simply note that the issues that judge frank hart pointed out about the tension between s o s standard and bra claims that don't implicate actual innocence i believe is an open question in the circuit it was left slightly open a case called lopez a twenty to fifty five case so if the court is going to hold benjamin to the higher standard or want supplemental