gage was convicted of a crime after a second trial if you will and the jury simply was not provided with the information that we should have had her in his deliberations we know that we know that for a there not because the state doesn't want to produce them on her that's precisely why we're here i asked so what's in the record that you can point to that you say the court of appeal made which the trial judge who made the determination conclusions to court of appeal and what's in the record to support your position aside from you know the conclusion to the trial judge was there not that not conclusions your honor there were actually quot from the record i know that well when you put him in quoted from the book and what records the record was given to the trial judge reluctantly by the prosecutor the requisite medical back by the trial judge requested and was given to the trial judge i know i'm getting at is we haven't seen that record because the state doesn't want to produce a chance oh so we don't know whether what's a true trial judge said about the record is accurate or not that's correct and that's because the state will not produce those records so we know so what do you want us to do i think this case should go to the district court the state should be compelled to produce those records for castle's eyes only if they have  were those records turned over to the state court they were turned over to the child judge in two thousand your honor you know i mean at what point after the trial was over right never never they have never been said they were turned over to the trial judge they were turned over to the trial judge in two thousand and that was after the trial was over after that was during sentencing correct your honor and there were never turned over after that to any of the attorneys despite the fact that m gage twice applied to the court of appeal to unseal those records were canceled only and then subsequently to the california supreme court so the california court of appeal had them i presume the california supreme court had them the only discussion we have granted a very brief conclusory discussion comes from the court of appeal so that's the decision that we looked at was the last reasoned decision of the state court and it states the conclusion there's nothing there to help  to understand that it would be from an out of god's respective it's a lot better if you're advocate can look at the records and speak and try to counter that but you know we're bound by apt and the case law resulting that would have said really undermined marion's testimony this case would have been in tight there would not have been a conviction in this case your honor had defense counsel been entitle to look at those records and cross examine marion on her statement or her mother statement remember this is a very very close case this was a case where the jury asked for marion's testimony this was the second trial this was a case where mr gage declined a three year offer your honor and he had already spent a year in jail eighty five percent of the remaining two years who'd been had he declined it because he was he actually believed that he was going to be found innocent he because he was innocent counsel you know with the possibility of that scott ritter material in all there and he had lost hope he applied to the california court of appeal he applied to the california three's direct appeal attorney when he was appointed counsel after he was denied all that he last talked i've interviewed mr gage face to face i've sat with him and there's no question in my mind and i've spoken to i've done other investigations in this case that i have not disclosed necessarily because i think their work product materials and i can represent you to quote art that mr gage is in of the charges the only reason why he sits in prison in san quentin state prison at age seventy six is because the state has side fit to not disclose the most material information on the only witness that they had against him and the only witness they had against and there was nothing else crowd greening those allegations if you read nearly in bond his testimony it is hard to imagine how someone could even testify she had absolutely no idea about what went on she couldn't even describe one incident in one incident she does describe that her brother walk in and it is ridiculous it makes absolutely no sense now i've had the opportunity to look at this record very closely and i account for the delay i mean you're making representations now the reason for the delay but there's nothing in the record to support those assertions you know and we have to go on the record right as as to why one you know he didn't raise this in this first petition why he waited so long is there is there's something that the law requires right that there be some diligence in pursuit of these kinds of claims and that there's no showing of diligence you aren't the first rational question would be if you're going to bypass the miscarriage of justice exception to at the and apply it by itself that's the first question here again the first question would be whether or not you're going to apply at pub over the mess carriage justice exception which would have been a shop gateway which does not require twelve where but ed ed i mean itself has its own gateway right correct but that's an open question whether or not is we don't have them so i don't think the clock has started taking unless we get those records no but you have reason to suspect what's in the records of what went wrong because of the trial judge did i agree with you on or i agree with you that there is a reason but then you weigh that against all the other compelling factors are going on in this case critically leaders state actions that states conduct in this case and act and when you weigh two together considering the fact that this court sitting on bank has not decided the question of whether or not shelp gateway is going to has overcome it but this is precisely the kind of case the send back to the district court to decide that question i agree with your honor the might be an open the question as to what went on why did mr gage not bring this in two thousand and five am i to add your honor that in his traverse to the petition he does elude to those records he says that they are records they are documents that are not being given to me and they are not being given to me big before for whatever reason but you should take a look at it he asks the district judge to look at that and the district judge doesn't doesn't look at it the magistrate judge doesn't report recommendation doesn't look at it  gates why not just produce them why not simply produce them to defense counsel this state fought so hard to do the prosecutor here who by that was going to become a judge right january of the following year fought so hard to keep those records away fought so hard to keep away the police reports where mary had made inconsistent statements whatever he could he did to make sure that mr gage is convicted of a crime would that the morning your honour's deputy attorney general david cook on behalf of respondent my opposing counsel has strenuously asserted that the prosecutor was inappropriate in this case for not disclosing and turning over these records however it is also abundantly clear that the prosecutor dragged us not him i'm sorry i apologize your honor that the records were turned over to the trial court judge who reviewed them the court of appeal who reacted strongly when he saw them yes your honor the court of appeal also reviewed them in reacted in a completely different way and the california supreme court also was asked to unseal these records but it isn't unusual if you have records to a trial court to rule rely on in making a decision and not give them to the other side this is kind of  time and they're always given to the other side i've never heard of those being handled by the court expiry without showing it to the other side is that common practice with you off my office did not handle the trial we as a contract with the d a s office i don't know whether i don't know whether it is common practice or not toys or news in a way they should be turned over to the to the opposition well yes because what is it because petitioner has failed to satisfy the two requirements of the gatekeeper provisions for that i don't think that's not an answer the question that's why they may not have to be turned over we're asking is there a good reason why they shouldn't be turned over well if the reason to be turned over is because they are brady material there have been state court determinations that they are not brady material when asked in the california court of appeal in the california supreme court to  and the argument being that they contain brady material the california court of appeal after the first request after a supplemental request and the california supreme court after request all denied unsealing the records in line in terms of fairness the reason for that your honor is because petitioner didn't bring the claim in the first place had petitioner brought the claim had petitioner made an assertion that the state courts findings of fact were unreasonable shouldn't be entitled to then perhaps there could have been a hearing as to whether the state court findings were entitled to deference and at that point upon the requisite showings in the district court those records could have been reviewed in camera subject to a protective order however the district court would have wanted to proceed but we didn't get there not because of the prosecutor not because of the state courts not because of my office or me but because petitioner although he had knowledge of the predicate facts did not bring the claim the first time around and he had several years he was on notice of these facts from two thousand two thousand and one when the trial court made its it recited its reasons for both entertaining a a new trial and as far back as the and these other requests to unseal the records because of in light of a brady claim those arguments were made in two thousand and four before petitioner filed his federal habeas corpus petition in two thousand five if i may also your honor whatever are the arguments of opposing counsel regarding the condition of petitioner himself he alluded to partial blindness and and other things i don't know whether that is supported in the record however whatever those conditions were they did not prevent petitioner from filing a federal habeas corpus petition in two thousand and five and if even if we were to take another assumption and that is that petitioner not being a practitioner of the law was merely setting forth arguments made by his representation in the state court proceedings these brady claims were made by appellate counsel in briefs to the court of appeal a supplemental brief to the court of appeal and a brief to the california supreme court and so even if petition a state that all he could do was simply for want of a better word cut and paste already made arguments those arguments were already made and could have been included in the petition at which time the federal court could have  n the proper showing in the proper findings have ordered disclosure of the records or or in camera review whatever was would be deemed appropriate under the circumstances at that time none of this gives me any more confidence that the conviction is valid well your honor and the prosecutor's job is to do more than secure convictions and your office to maintain them when you're ultimately trying to do justice the trial court judge i don't know who it is let alone knew he or she but reacted strongly to the circumstances and i respect the court of appeal and they reversed and without advocacy from counsel because the council didn't have the records concluded that the records were not helpful and that's the state of affairs as we have it but i have to say from what i've seen this conviction was not based on overpowering evidence and so there's a grudging concern gee were there things that if the jury had known about it all hung on the testimony of the one witness of the things the jury had known about with that conviction with that verdict guilty verdict of resulted there's a question and what i've heard from you so far is a set of procedural obstacles which mr gage pro se failed to clear and that's true and that's what the law provides but none of them give me any confidence that the conviction should sustained in a broader sense is there a reason why we should have confidence that this is a valid conviction i mean think about if you had to take the case as presented to us by the titian or is it true in your view that the conviction rested entirely upon the testimony of the stepdaughter it's my understanding that it that there was no that the evidence was the testimony  the witnesses due to the time between the alleged are well between the two excuse me between the time of the action and the time of the trial and that's the reality many of these cases and i understand that the prosecutor is he says she says in the jury has to decide and that appears to be what happened here well the trial judge at least reported the photos records that have been denied and defense counsel reported that the mother stepdaughter her daughter as a pathological liar isn't that something you think the jury might be affected by it seems that that would be something the jury would take into consideration doesn't that make  your honor in my per face on this record it is not clearly brady material if it were then why did the quarter why did the justices of the court of appeal deny so we're left basically the state's case is that we've got to take the say so the state court of appeal judges who made their decision without advocacy from defense counsel because defense counsel didn't have access to the records in question doesn't that trouble you in some fashion troubles maybe it may be that we can't do anything about it because the procedure limitations but i gotta say it doesn't give me a lot of confidence in the verdict does it give you a lot of confidence in the verdict your honor i'm not here to question the i'm not here being asked to on some level you are because the state of california in their classic quotations about the prosecutor's job is not simply to obtain convictions it's to do justice and i've had other cases where to his credit the state attorney general's office in the local prosecutors after they successfully convicted incarcerated somebody decided no there's something wrong here and wound up undoing what was done so i hear what you're saying your job today is to advocate for a position which isn't the position that i'm talking about but in the big picture i have all i have some concerns about this conviction i would hope the state of california would have some concerns as well well your honor i don't want i personally don't want you to think that i'm fit standing here blithely disregarding everything you have to say believe me i'm not and i will go back to my office today and i have a conversation with my supervisor over how to proceed and as you are familiar with my office there is a chain of command and i will i will bring it to my supervisors attention i have personally not seen these records all i know is of what is in the record itself i came into the case for purposes of this argument and so i want and you have to play the cards you're dealt i want you to understand i'm not f you individually but right now the system seems to have worked in a way that at least raises questions so if i if i may your honor and i still have a few minutes if i may to address your concerns about the system of justice in this took the stand to took a position which is reflected in the record and if the if the what if the i don't know why the trial court didn't order it out i don't know why i get why the laughter the verdict came in mean you read the trial court's order raising questions and expressing surprise at the verdict that the jury couldn't believe the key witnesses and then it appears the trial judge gets the records and orders a new trial so of the four people we know saw those records the trial judge the three judges in the state court of appeal at least one of them responded strongly and gave us the few clues we have as to what they contain the reference to pathological liar and so forth and all of this is done without defense cause of having an ability to go through and it was an advocacy system depend on hearing from both sides they don't just give us the material we're not we're not the magister whatever the inquisitive type system and so except ng in good faith that the judges on the court of appeal look at it and say no we don't think there's anything here that would have made a difference that perspective could be different that conclusion could be different if they heard from somebody who could advocate saying look at this in this in this and i can connect it up with us and so forth so i don't know why the trial court didn't order their production but it's a clear the trial court didn't see it himself or herself until after the trial was over does not seem odd i mean if it's if it's if it's evidence that would speak to the credibility of the key witness ordinarily that's material that's turned over  i don't know the thought processes of of what went into all of the judges and justices however at this point in prior arguments that i have made to this court i have been also told to limit my arguments to the issues before the court and at this point again i don't i'm not saying this and to be blithely disregarding of your comments and your concerns and as i said and i'm a man of my word i will go back to my supervisor and i will convey all this if he has not already listening while you hello there and i'd like to say hi to my mom too but the issue before the court right that i have been asked to address that i have briefed is that the petitioner has not satisfied the gatekeeping provisions and i say that again you refuse the gatekeeper visions you mean in yes you're on about you know to say you know contain explicitly those conditions do they that put those it is well your honor there they're congress has spoken as to the limitations of when a second bite at the apple is to be given petitioner has not met those requirements and to the extent again i know and i know your honors based on the comments so far you will disagree wholeheartedly with what i have to say but in the end this is still impeachment material not not such that establishes actual innocence it would be for a trier of fact to determine the credibility of the victim any other prosecution witnesses any other defense witnesses it is not clearly established or clear and convincing evidence nor is it the high standard of actual innocence in this case i have exceeded my time  crank you thank you your honor so i appreciate it and like i said i will go back and i will be speaking to my supervisor remodel let me just first address the it was sense he was denied access to these records and they hold prove a possible brady violations this is a man who was acting pro se who wrote that in his traverse back in the first petition did anyone ever take it there it could have them if they'd been pursued presuming the district court denies that petition what happened after that your honor in order for you to determine due diligence you the case law holder you have to put yourself in a petition is position and prisoner position mr gage through cancel at the direct review process he asked for those records he cited the trial judge's concerned which by the way wasn't pathological liar mary was having an affair with a twenty seven year old addicted heroin addict who had a motivation to lie she had plenty of it yeah exactly so he gets denied in two thousand for the constant federal court federal court what is it do he just brings the substantive claims that his castle had exhausted he doesn't mention the brady quinn to his traverse comes up but this is a man who sitting in prison this is a man who's not capable of doing his own petition he's reliant on some other president of interview to do this i mean this is not someone who why would mr gage purposely other thirty when i was appointed counsel your honor he's in north of appeal interesting up with still pending with the district court you know why because the district court simply on the discrepancy order had denied it because it wasn't addressed to the right documents those excuse me asking for the testimony of the witness deliberations there's no question here that the result would have been different you are we thank you for your argument thank you and i would thank both counsel for your and professional arguments the case just argued this submitted