defender and i represent john childers mr childers was convicted of two violations of oklahoma sex offender registration act where one step should not apply to him at all and where his registration period ended relief and those convictions violate his federal due process right to be convicted only on proof of every element of each offense mr childers innocence cla is based on an element of the offense or all elements of an offense not apply to him though claims of actual innocence typically involve new facts this is also a claim of actual innocence it's the same the state offenses after mr childers convictions the oklahoma courts issue decisions involving whether provisions of sora could be applied retroactively in starkey the oklahoma supreme court how the state's ex post facto clause prevents an extension of registration periods from being applied retroactively it will out in significant part on the fact that this extended residence that convicted involving residency restrictions and held that under starkey it was clear that as a matter of oklahoma ex post facto law the residency restrictions could not be made more stringent that the same argument that was raised before the district court well in the district court the organ was more about the sentencing components of it it was still based on starcade and that line of cases i well there is but rip factual innocence excuses hey b s problems with with going forward like statue of limitations or procedural default and things like procedural befor the fault around it is principles of comedy and federalism same thing with the statute of limitations which also goes to the finale the state's interest in finale those interests are markedly weaker i slide up what appellate courts do not madden's to review issues that are raised before the district court it does but if actual innocence should excuse the or does excuse the failure to raise something in the state  just general principles of pavia slow like angle versus isaac which indicate that the interest in the state procedural context are much stronger than the ones in the five are much stronger and here we're only dealing with respect to this court's relationship with the federal district court in terms of federal interest and not any independent state interest and actual innocence should allow that to be overcome just as it allows more weighty state interests in a hideous context which are protected by numerous states link all the judge making rules about procedural default and also statutory things like the tempered in in other ways and it's just a judge may rule it's not anything that this court can excuse based on a showing of actual innocence which is what we have here we have actual innocence based on a state statute that doesn't the ex post facto issue they were raising and that was raised in the district court although in a slightly different way it were racing on appeal and if as a matter of oklahoma ex post facto law section five hundred and ninety did not apply to mr it didn't apply to him at all but it's somebody but where did he raise that argument in fact you seem to be conceding that he didn't raise it because he didn't he believed it applied to him i don't i don't see how you get there well he was relying on the effect of oklahoma ex post facto decisions as to a sense that he thought applied and this is about what the crime applied at all it's still based on  finally not containing this precise argument in the federal district court is something this court certainly can do this court has said that it can consider these arguments for federal w it also has a discretion not to an actual innocence is a reason for it not to and the graham case shows very clearly that under oklahoma ex post facto law  apply that more rigorous residency restriction can be done consistent with obama expos fact a lot so applying a resolution residency restriction all certainly can be had this just did not exist at the time of his original sex offender conviction so he should he's not guilty of it he's actually innocent and it's a federal due process violation for him to stand  convicted of a crime where no elements of the offense can be shown because there was no offense applied to him at all he's it he also has to both of years provision was omitted in ninety seven your clients was convicted in ninety nine so well that's correct and the oklahoma courts have said in cases like starkey that  oklahoma cases was it an issue of whether it should be at the time of the conviction or the time of the act they said oklahoma ex post facto law like basic federal ex post facto law looks to whether there is increase in punishment for an act or a fact that was already established this is his acts his sex offense crimes were in nineteen million twenty one thousand nine hundred and ninety three at that time facto law it's the increase from the time of his offense conduct that is what matters for ex post facto purposes but maybe but maybe in this particular area registration form or sex offenders there is some logic and tying those registration requirements to gain a conviction for the underlying offense you know what i'm saying otherwise you're looking at it as a free standing  charge which really would only be a charge if it is again connected to a prior sex well the the time the a registration period obie's runs from some point after conviction just like a penalty runs from conviction it's his act so that subjects him to sora it when he's convicted of the act that sort of actually comes into play but it's his conduct in committing a sex offense that makes him a sex offender and that subjects him upon conviction to the sex offender registration act and you know and all that we know when he had sex offender treatment well he has alleged in his petition that he had sex offender they completed the sex offender treatment program in prison and they we don't know when what we know is some time before two thousand and five when he was released it was obvious it was some you it surely was and that's why we're saying that it has to run from the time of his sex offender sex offense other basic principles of oklahoma law and we guess this court to purely legal challenges that are both untimely and an exhausted this court should decline petitioner's invitation to explore the merits of his claims and should instead affirm the ruling of the northern district of oklahoma dismissing his habeas petition no relief is warranted here for two reasons st and foremost petitioners claims are procedurally barred and he's not shown his actual innocence sufficient to overcome those bars and seconds alternatively even if this court were inclined to find that petitioner has raised a showing of actual innocence this court should still remand the matter to the district court for further development of the record in the st instance below now with the court were to find the petitioner has raised a showing of actual innocence in as much as this court would need to find that his ex post facto challenges raise ones of factual innocence and here petitioners claim simply can't they  raised a showing of factual innocence then i think the matter would need to be remanded below for consideration of the merits in the st instance because as the supreme court reasoned in would versus miliard absent an abuse of discretion without considering the merits of his claims if this court truly were inclined to find that he's raised a claim that actual innocence you know as much as he'd have to show his factual innocence then this court should demand the matter but i don't think the court needs to even go that far because petitioner here today has not shown anything more than legal insufficiency now we know mcquay can be perkins the u s supreme court cautioned that tenable actual innocence gateway please are rare indeed under the s framework it's only in the extraordinary circumstance where a petitioner has shown his actual innocence as a gateway to otherwise procedurally barred claims why doesn't the set the framework of the balustrade your honor two response v bell which was in two thousand and six that a petitioner does need to come forth with evidence of new reliable claims showing his his innocence but even if this court were inclined to find that balance lee in some way is likable to the instant facts balsillie considered an intervening change of law in that case there was a there was an intervening decision that changed the use of a firearm test under federal law and the supreme court remanded the matter to further develop the record on that issue but petitioner here can't avail himself of the reasoning in bruce lee or valuable are because we don't have an intervening change of law here so even if he stood for the proposition that actual innocence can be based on an intervening accountable on charges that do not apply to now well your honor with with respect to the petitioners allegation of an intervening change of law i think that this court's order granting c o way even recognized and that's the order of page six recognize that petitioner could have brought his claims long ago in the same sense that that the petitioner in starkey brought his claims in the st instance is based on a matter of statutory interpretation so to the extent that petitioner sees this as an intervening change of law as a reason to excuse the procedural impediments we simply don't have that your petitioner is raising the same claims that he could have raised at the time of his direct appeal in two thousand and ten and so to that and this court has recognized that ex post facto challenges amount to ones of mere there are questions of pure law essentially and this court recognized that in the unpublished decision of martin versus ray which is the case i discussed in my brief and there this court declined to allow a c away on ex post facto challenges when the petitioner there was procedurally barky was an exhausted in that instance and the court their reason that the petitioner had not even close to showing actual innocence because he had asserted merely legal challenges without without in any way undermining the factual circumstances that issue there the same was said by the district court for the district of colorado and versus ramish which perhaps even more pointedly addressed in ex post facto challenge and they're the petitioner the crimes that he was convicted of had he then the acts that were alleged to have occurred had even partially predated the statute he was convicted under and that was a prototypical ex post facto challenge and the district court below said that that did not amount to a showing of actual innocence under the schlepping the question framework and therefore he was not able to show actual innocence the same you're relying here on time when us and exhaust this wasn't the sorts of challenges weren't raised below and not only were they not raised in state court they also weren't raised in the federal district court below and so what do you say q council's argument that now surely if actual innocence can trump all of these concerns that remote have and issues of how many surely actual innocence can trump waiver well your honor my response to petitioners argument in that respect is lee this intervening change of law a subsequent amendment to the law we don't have that here petitioner is just raising legal challenges that could have been brought a long time ago and so on why don't we have that i mean we have  wasn't registered at the time so he's not subject to sort which is an element of asara offense why isn't this the same so that your honor my response to petitioners claim there is he's looking at matters that are simply undeveloped by the record below or what he called count one where he discussed the x comes back to art and so when that be easy enough to get this back down so the district court and find out if he completed that treatment wouldn't that be easy enough to do well respectfully no your honor and to that end i think that even if this issue were remanded to the district court i think these matters are so purely wrapped up in oklahoma state law that upon a remailer and i think the district court might have to provide or present  like a certified question of law to the oklahoma court of criminal appeals and i understand the petitioners argument here today is based primarily on starkey and decisions from the oklahoma supreme court as well as a graham versus  place properties association which is from the court of civil appeals an intermediary appellate court in oklahoma but petitioner so much as acknowledges in his supplemental opening brief that we don't have a clear answer from the court of criminal appeals and to that end had petition er raised these claims fairly in state court we might have that answer here today the court wouldn't be forced to guess at questions of state law that were undeveloped in the record below and so if that did want to ask you it seems to me you didn't really make any argument in your brief as to whether you can interpret starkey him or no other case and graham on the floor j c sniggler you didn't make any argument about that if you brave that if we decide we can reach them well i certainly would would hope that i haven't waive that argument your honor and i think that i think that the procedural grounds are strong in this case and that's why i stood mostly on procedure in my brain what what if we disagree where where do we tell that we don't really have any briefing from you on what is a fairly complex issue i think your honor if you disagree with me on procedure and even if this court were inclined to find that he has made a showing of actual innocence i still don't think the record as it stands now is adequately developed enough to even bear out petitioners claims on the merits and so to that end i think with respect to start he graham it minutely a case but graeme at st blush it seems like it's on have the guidance of the time line when mr x occurred when he was convicted when the statutes were effective when they were revised we know all that that's correct your honor and so so we do know the timeline in the record but there are there aren't necessarily documents in the record that substantiate petitioner's claims and i think this is to judge some of what like what so for example any evidence in the record other than petitioners own self serving statement to that he completed the program while in the custody of the department of corrections have you ever challenge that fact well your honor we haven't and we haven't challenge that fact in the sense of that claim was not raised in the proceedings this is a new claim here today and so and in my brief before this court i certainly mention the fact that petitioners the only evidence that he had completed that program is his own statement in the record on appeal which is in his post conviction pleadings as the record of page nine and so to that end all we have in the existing appellate record is petitioners own self serving statement that he completed that program and so in that sense because this claim wasn't fairly presented below it certainly wasn't presented in state court and it wasn't presented in the federal district court below the record in this case is woefully underdeveloped and so the petitioner is is seeking to rely on the gaps in the record here  to sort of you know to invite this court to speculate and conjecture not only on matters of unsettled oklahoma state law as in the retroactivity of oklahoma sora but also as to the factual matters in the record regarding his alleged complete one of the programs and you see treatment program during his time incarcerated also what's unclear in the record is what his dates of rhian parser ation were following his release from confinement petitioner he admits in his supplemental opening brief that this could be a possible wrinkle it's not just a possible wrinkle it there by statute under oklahoma law the sex offender registry act does not apply to individuals while incarcerated and so once again the court is actually and all other ways innocent and we reach that if you or hasn't been away as i understand your question your honor you're asking if the court finds he is actually innocent can we reach the question of his duty to register that would be his nd ground in his brief and what can we can we look at either conviction and look at whether or not the convictions  valid or must we impose waiver and if we have to impose waiver tell me why well respectfully your honor i think even if this court were inclined to approach that issue i think there are significant  roadblocks to consideration of the actual substance of business claims st as to his section five hundred and ninety ground living within two thousand feet of his school as i said it depends on unsettled matters under oklahoma state law and as to his nd ground the duty to before the federal district court your honor i see that i'm just about out of time to have his answer yes and so so if this court truly did find the petitioner has overcome the procedural impediments here today i still don't think that petitioners claims are  today i think that he's waived them he's forfeited them by not raising them below and i don't think this court should even approach the substance of his claims in the st instance and so for these reasons we've asked you affirm the district court you have any case where you have actually innocen come forth with new reliable evidence and they've developed that in the record and we don't have that here today because petitioner is raising merely the goal and on preserve claims that had never been heard before and so in that sense your honor that that portion is unclear and think athlete talks about how there is not proof that he can mr childress completed the program they represent or definitely is the director of the apartment of corrections and they note that he completed this order they know whether  would have been addressed in the statute if that were the case there are no facts here that need to be developed we know it's all a question of when he was released when his offense is were committed or