exception to the secular success of standard for claims that were not right mag would with its seven justice combined opinion tells us that there are two separate categories of claims that are not second or s they tell us one side is claims that were not right it cites pinetti it also tells us that claims that did not exist at the time of the petitioner is first petition also are not second or successive it points us then denials issues where petitioner has not even had an opportunity to have the claim come to being so we know that these two things both should not be treated as second or successive case on that we don't honor very few so that's what we're asked to decide here when they do when does a brady claim right then yes your honor that as presented in this case i think i quoted some dicta on one that at the latest would be you would argue that that would mean when the person house gets knowledge right yes your honor from gauge gauge tells us that the petitioner's ineffective assistance of counsel claim ripened at trial that's consistent with which also trial at his new trial hearing about the possibility of this evidence so gage treats these two things very differently and then of course as was indicated in the prior case mr gage had actually had notice at the time of his first t petition so his claim was long since right and he was foreclosed now why doesn't the text of twenty two forty four preclude your argument your honor the text of twenty two forty four has sort of an intuitive  temptation to treat it as specifically designed to talk about brady claims but it's not the text first and most importantly size a second successive petition and that harkens back to the history of this case law which says that once a petition is second or successive we talk about whether or not it can be excused previously that was under the abuse of the rape doctrine now it's under and but there is a whole analysis that goes into whether or not a petition is second or successive it depends on whether or not the claim is right it depends on the status of the first petition and the contours of that analysis can change depending beef turban where the supreme court upheld the constitutionality of twenty two forty four b you are felt for sr been absolutely does say that the concept of the second or successive standard the sort of ratcheting up of review that comes with is in and of itself not a suspension of the writ however there are times when that analysis could be applied in a way that has an unconstitutional result so we see that discussion for example in the  circuit opinion the problem when you talk about brady claims is that the nature of the claim implicates much more serious concerns we're talking about suppression which could be negligent but could be intentional that withhold evidence from a petition and so you're cutting off a very wide swath of meritorious claims but you always have the safety valve of being able to show actual innocence i mean that's apart from this that that i mean just you know i mean looking for you know from the standpoint that i mean clearly we don't want actually innocent people to be convicted of crimes and that there's always if you can slap your way through that then you you know you you still get before a court right the statute does contemplate that some claims might still survive of course the standard is quite severe and we do see potential issues with cases like douglas versus workman where sort of the vagaries of litigation run the risk that among the only types of claims where we see a state that's in possession of evidence that is in a stronger position to defend its own conviction than a petitioner it is in the vast majority of other situations we see a petitioner who is at well you could have a claim like gauges claim so if you know of your brady evidence at the time of your first petition and you failed to bring it then you are second or successive and if you cannot meet the standard which mr gage could not your claim will fail to understand the government doesn't challenge that brown was diligent that is my notion based on their answering brief yes ok so you have if we kind of go to the evidence that we're talking about here i don't want to just close anything that is there's a protective order on some of these because we're talking personnel files but i get it wrong but what's your best authority for the proposition that the evidence of charges against police officers unrelated to the type of case a bar is proper impeachment evidence because i think two out of the three officers said name and testify at the trial right that and there and there are very unrelated situations that come about so but your best authority that that it would even be relevant i would offer your honor in two cases one and potentially three verses ryan is an excellent case on impeachment evidence in that case the facts were slightly different so the officer actually testified about what had happened in an interview with the defendant and so his credibility was more directly implicated we also see i give our versus woodford which is a direct petition in which the impeachment of ins was actually defense to challenge the conviction in light of the rest of the evidence in the record even though there was eyewitness testimony by multiple witnesses so when you take this evidence in the context of the whole record particularly in a case where there were substantial questions about the quality of the investigation then you see a real opportunity for mr brown's counsel to poke holes and question the competence of the investigation from the very beginning ok when you're getting close to two minutes i don't know if you want to reserve your time i would like to reserve my time your honor i will indicate that if there is additional evidence about the two officers criminal histories we became aware of in their personnel files we don't know if there is and we have not yet had access to it because we have not had discovery in the district court thank morning grigory out for responding please the court brady claims fit squarely into twenty two forty four b it is the only claim that i can think of that by definition is it fits into twenty two forty four b two b everybody claim fits that well i mean there's just ordinary newly discovered evidence isn't there that wasn't wasn't withheld by the government yes but i'm saying the debt that the elements of the brady claim are forty four b and my point is that congress did not overlook brady claims in writing the statute it's one of the first things you think of when you read this this definition and so i think the congressional intent is very clear as far as judge you asked about what else there is to show their intent i think i don't have any congressional history with me or nor have i looked at it however we know that the congress intended to promote finality and they have done that a variety of ways and cutting off brady claims but leaving the safety net of actual innocence is one way that that is accomplished the same with the statu distinction about existence versus discovery and essentially follows twenty two forty four b two b gage uses muddled language it says at one point the factual predicate developed when the court mentioned the material about a page later it says it described that incident and says that's when it became known to him but i think the more important aspect of that case that shows what they meant was the paragraph right before they talk about developing a predicate and that's where they lay out when rostrums distinction facts that existed but weren't discovered and facts that didn't exist until later and then they apply this brady claim through twenty two forty four b there if i think that that i think that in the back of the developed language is muddled but i think if you read the opinion it's clear that they're not saying that that's when it became would i don't recall the context of the statement that was recited but it can't mean what they what it says and here's why one is the majority rejected a claim based analysis in that case so the argument that well he couldn't raise this claim that the analysis there was that the majority adopted was a petition based analysis and frankly any comment about whether he could have raised it is dicta because the ultimate decision in this case is based on a separate judgement the whole the whole separate petition and challenging a separate judgment and that's what that's how that the case was a result of the other thing is that comment really re states the abuse of the writ doctrine and the supreme court in this court of make clear that that the abuse of the writ in twenty to forty four are not coextensive twenty two forty four restricted it the abuse of the writ in force twenty to forty four but twenty two forty four restricted the abuse of the writ doctrine so to state that that is the route that couldn't be what they what they meant by saying that because they've said otherwise something different well let's talk about whether or brown's intitled to permission under twenty two forty four b to file a second or successive if we get to that now the evidence and the evidence against brown at trial could be termed circumstantial for purposes of showing actual innocence by clear and convincing evidence under twenty two point eight four b is there or is there a proportional relationship between the strength of the alleged brady evidence and the strength of the evidence presented at trial put another way the weaker the case the weaker the brady evidence needs to be to satisfy the twenty to forty four b well i suppose just as as a matter of logic it would however the circumstantial evidence and in this case i would say is very strong mr brown had a motive williams had given a statement to police she was going to testify against him he had personally with feigned given her a note threatening her and threatening her silence but her to remain silent he personally told her he did not want to testify and then the timing of the shooting three days before the prelim in which she was to testify then digs in feigned statements and consistent not credible digs and things convictions are conclusively valid here you know we were there their involvement can't really be questioned at this point in fact mr diggs is deceased and fain is out of custody and they're so there are there are their convictions and involvement or final as a matter of law so to suggest that they had nothing to do with this and then the coincidence that mr diggs is walking behind his williams you're saying there's no why would this testimony and no forensic testimony linking mr brown yeah no in fact i don't think that there was no no there wasn't or no yes there was not yes there was either and there wasn't an argument at trial that brown was present so he's linked by conspiracy that generally speaking that he got fain and digs to do this for him now on the other hand we have mr g and his conduct which i won't detail for reasons or been explained to minimize he had no contact with the victim or any of the finance he did not investigate this case no role in investigating it he really was put on for historical fact which is he was he and his partner were the first to show up at the scene they set up they cordoned off the area interviewed a couple of witnesses those witnesses said nothing of import to either party they were passengers on the bus in fact all they described was seeing the victim out the window lying in the street to other two other witnesses who saw a possible suspect in the distance that was incorporated into his report that was the report of another officer and those two those that officer and those people testified at trial not inconsistent with the report there is simply nothing here but but witness testifying to historical fact and yes there's impeachable evidence there but one act was not going to change his is just the import of his testimony can i just last can i go back to the basic statutory question here ok yes spose you have a case with real brady evidence real exculpatory evidence and ok now this now we're not submitting that the government has done wrong and withheld it and now we're going to flip the burden of proof and say the government did wrong government with held that but you defendant don't get a shot unless you can show by clear and convincing evidence we've taken away the ordinary burden of proof all because the government did wrong you see that's is not the big problem with reading the statute the way you want are you talking in the context of a second petition i'm talking  can be viewed as a harsh result but i but the fact that the government was involved i don't think is sufficiently distinguishes that there are a lot of harsh results that could be argued from a d p a generally including and and twenty two for the question is is it the harsh result that congress intended that's that's my question we're it is that it is based on not just the language but the fact that brady is so clearly described in that language that that's what they intended they couldn't have overlooked i'm just thinking that you could get to a point where you really have a constitutional problem you talk about suspension yeah i you know there are many limitations on a imagines much more than a brady claim imagines i see claims that imagines freestanding actual innocence claims and that makes sense to treat those kinds of claims differently because those are claims the state cannot protect itself against a new witness comes forward that no one was aware of new d n a testing becomes available that was not previously available the state is at a disadvantage because time has passed but they could never have protected themselves from that eventuality unlike a brady claim and on the second point to congress intent the legislative history about is about this part of a is described briefly in lopez and the lopez court notes that there is very little that it is a paragraph or two and that it appears to be geared specifically to streamlining the death penalty procedures there is no suggestion that what congress was trying to do was to cut off claims implicating withholding by the state can i ask for close this question it doesn't help you but it doesn't foreclose it i would agree with you there are ways that i would have written when i was sure differently had i had the opportunity but now it does not work with us all right thank you both for your argument this matter will stand submitted