morning your honour's may please quote i'm here today representing james look roun who is the petitioner in the court below and i'd like to reserve five minutes for a bottle if i may you may thank you yours this case should be remanded back to ultimately to the state court for a new trial in this matter because police officers in this case violated the due process rights of mr moore grown by interfering with state witnesses and causing them to provide testimony that was less than truthful at the trial in this case the the two witnesses that we've provided affidavits for in the quote below giovanna j carter and willie pringle both testified in the trial of this case they have provided affidavits that say that they provided that the testimony that they provided was a not truthful but more importantly than that it was not truth would because they were threatened by police officers which provided not but not the majority of it in the problem here is that at the time of the trial obviously they were feeling the pressure of that intimidation itself which is why this came out later on in the process  decided that they had been pressure intimate and they testified that they had given the police statements that were not true absolutely so what they're doing now is saying and on top of that even the testimony that we ended up giving was still a guess one of them says not true and one says not exactly true is that exactly in you know the omissions the whole area was known that is the fact they'd been pressured was known yes fact that they had changed their stories to some degree was known and it's just that now they say that they're changing them yet again absolutely absolutely and that and that in that so that's what we're dealing with here and but the  part that has been omitted from this process is kind of a key and critical part to the entire prosecution in this case and that is that there was this other person who had a motive for the shooting in this matter and that was ms hughes the issue in the whole story of ms hughes putting together a robbery of that particular home on that particular night was something that was never heard by the jury in this case and the reason that it wasn't heard by the jury in this case was because of the conduct of the police officers in suppressing that particular evidence testified yes she testified and so obviously the defense knew that she was involved i mean she's you know she's connected with all of these people so it wasn't like she's you know the mysterious stranger in the book absolutely but they had no reason to believe there were actually numerous people in the house that evening and so there was no reason to necessarily believe without without hearing from mr pringle and mr crowder there was no reason to believe that she somehow was putting together this robbery of the home and the and that's the that's where they were they asked anything about their relationship with her where they denied speaking to her or anything of that sort i do not recall you're talking about trial testimony i don't not recall any trial testimony did in that regard as a matter of fact  investigation to determine what they would or wouldn't have said am i right though this is it may be important but it's peripheral in the sense that they were not in any way witnesses to the crime itself that they were in a sense ways of providing either impeaching ms hughes or supporting an alternative theory neither of them were eyewitnesses to the to the crime but if you parse out the crime in you have to look at the murder versus the robbery in this case because when you look at the robbery beverly we don't have huge because because she didn't she said that she went the other way as soon as shots started being fired we have levy's son who was outside at the time who also couldn't provide any evidence as to who was  to go on about the timing here though because correct me if i've got the dates wrong but these affidavits are signed in november of zero six and in fact they say that they were contacted by this lisa le grown earlier we know pretty much cheaper i mean they may be truthful but pretty but she provides her lawyer provides the affidavits that type the same languages the same one of them even says i received this affidavit yes petitions filed in zero nine right so how do you get around that gap well i think there are three ways to get around that gap first which is probably the weakest argument which is the district court in this case actually went to the merits of this thing in a shoot any argument in terms of a procedural  anything like that but i think more importantly we have the fact that this court in the zero nine case when it granted a successive petition in this case made specific findings that this was evidence that wasn't available earlier and i think that that it's not couched in terms of in terms of that threshold procedurally going for but it is there is a finding that the affidavits could not have been discovered previously but we know when they were discovered because they were signed in two thousand and six a i think that we're stuck with in my opinion we're stuck with lot of the case here but let's try your third reason that well the third kind of this is an ancillary reason well in this is this is a part to be to this this issue which is got the state of michigan in this case did have the opportunity to respond to the second or successive petition in this case and bring forth all of this information to those original panel before it made its decision that there were all these specifically about seven and she said with respect to that i never said she was asked about that she actually there was this whole interplay in her testimony about  she didn't know what the word set up mean in meant in and she thought it was subbed like setting up a chair or something like that and so she was absolutely she was asked that information i don't know that but i don't know that that equates th defense counsel knew that this was a defense because obviously he didn't further that with any other witness or make any other allegation that there was in fact a set up in this case and that wasn't if you get to the closing argument that's not the defense that's presented  at the time of trial so i so yes that question was there but i don't think it was i think it was nearly fishing if anything else the three sure the day that i that i raised in my reply brief on why we get past this issue with regards to the the timing is the actual innocence exception and i raise that not i didn't argue that as a freestanding but i did argue does that as the basis for moving forward to the merits of the case and so we rely on the  on that gateway the actual innocence gateways are yes as are as kind of our third prong to be able to get to the merits of this matter and unless there are any other further questions i would leave the balance my time for the rebuttal in this case thank you counsel thank you do submit that the claims are barred by the statute of limitations that when your statute of limitations as well as the procedural default doctrine however either way if the court chooses to address the issues mr graham cannot show that he's entitled to relief so the state would ask the court to affirm the decision well what i would say to the brady issue your honor is with with respect to both police intimidation that they allege as well as the as sharon who's being the mastermind of this robbery plot is that is that even if even if it did come out  did excuse me it did come out at trial about us that if your honor pointed to that testimony and john carter and really pringle both testified at length that they were pressed by police that they felt intimidated and that's why they gave non truthful prior police statements so with respect to brady the three prongs that need to be met by mr brown our materiality suppression and resulting prejudice and because this the crux of the testimony was given actually at trial none of those elements of brady can actually be met so at best the contents of the affidavits where both carter and pringle testify or excuse me they of are in their view and their affidavit that sharon hughes approached them and talked about setting up a robbery with respect to that at best that information could have been used for impeachment value and brady does apply to two impeachment evidence however here with respect to sharon hughes anything that defense counsel would have done to impeach her further would have made absolutely no difference defense counsel did a great job of impeaching her or her credibility as an as excuse me as a witness he discussed her drug use he discussed how she had just woken up right before the robbery took place he attacked her vision she is there's testimony in the trial that she's actually cross eyed so he attacked her her vision he attacked where she was placed during the robbery so her ability to see what actually happened and her lapses in memory between the the statement she gave to police as well as her testimony at trial so so there is significant impeachment here by defense counsel so i would state that the anything the embellishments that mr carter  made in their affidavits would have at best been cumulative impeachment evidence were there any in thank you to book brady were there any physical statements pieces of paper written down that were suppressed that were not or that were allegedly suppressed or was it simply that what they now say was suppressed was conversations with police to things to that you're not they say that that there's that their general conversations with the police were suppressed as well however there was one statement by john carter who said that the police actually physically tore up his first statement because they didn't buy it and they threaten to put a mock up if they if he didn't tell the real story and that's what he stated then it will and i apologize that's an allegation although at the moment it's not like the usual brady claim where you've come forward with a piece of paper that was in the police file correct that's correct however about tearing up the first statement mr carter testified to that at trial he said the police tore up my first statement so that can be found on page id four eighty six of the trial record so he did testify to that it trial and it could have been actually it was explored because he said everything i made in that first statement was the trigger so did some policeman testifying disputing that actually my review of the record had very little to do with their actual interview honor however we do we do have i believe it's united states versus board that even if the evidence comes out mid trial that brady doesn't apply because because it can be used actually at trial so so it's not a complete suppression if the if the either up or still have the statement and haven't produced it it would still be a brady violation wouldn't if it really if the statement existed correct right yes but the what came out was the story but not the physical piece of to meet in order to be entitled to relief on that claim is that carter and pringle were under such to rest by police that it affected their decision to testify or it affected the or excuse me and it affected the content of their testimony and that standard has not been met here both men testified openly about how the police intimidated them threw them in lockup until they changed their testimonies and so finally they acquiesced and said something to the effect that would implicate  frankly is questionable and that they were pressured into giving these false statements but when you examine the trial record and you actually read what they testified to it didn't it didn't result from interference from police because they completely undercut what the police if they had leaned on them wanted them to say they said no everything i testified to or excuse me everything that i said my police statement was just not true i'm telling you the truth now at trial so that test can't be met because they completely renounce those statements as a as a just a pack of police induced lies so that standard can't be met in any event we would submit that it's harmless simply because their trial testimony when they said up and down this is true but brown had nothing to do with this and what and neither of them can say that they witnessed the shooting as your own or judge mike pointed out because they didn't one was two one was a street away and one was nowhere near the scene of this or the shooting so they can't say whether or not or excuse me they can't speak to what actually happened in the house and secondly grown in the house about the grown wanting to sell heroin out of his house in you know along with a lineup of other people that were selling drugs out of the home so he was the one that spoke to him he was the one who had a gun put to his head he's the one who watched his friends being robbed and then he also wash most of the mr the ground chases nephew off the steps and then there were fire and then there were shots fired so his eyewitness testimony is essential to this case john carter and really pringle have had but apparently saw the gun and booked off the porch and that's when we grown followed him and all of a sudden we heard shots i don't think he said he actually saw the shooting but i rely on the record for that pretty he heard running down the porch and he heard gunshots right afterwards so that that's consistent with walter at least testimony so as so with respect to both both claims the standards of both claims brady and police intimidation neither of them are met here and even if if they were any errors harmless based on the very strong testimony of walter lee and just to just to back up the the cornerstones of of the of the issues here are with respect to these affidavits and under what your honor talked about the standard requires very significant evidence to overcome procedural defaults such as a procedural bar such as the statute of limitations this is a one nine hundred ninety one murder he had three opportunities at the state court and every single time he presented different evidence that was newly discovered so so here that the affidavit that was signed fifteen years after after the conviction we find incredibly suspect it's especially considering the fact that the premise upon which those affidavits are based were actually discussed at trial i am happy to this testimony in light of the effective or not effective cross examination of hughes at the trial in this case that the whether or not there were was affective cross examination by defense counsel's not the standard that should be used because you have to look at what was the effect of the suppressed evidence what effect would that have had on the trial in this case i think there's a recent case from this court called to vera which is a brady case and as i recall nec case that the court found that there was sufficient evidence to convict but still overturned based upon the brady violation because of the effect that it could have had on the case in this case you have the defense was it wasn't me it that i wasn't there mr graham wasn't there it wasn't him  so to be able to then put before the jury not only wasn't it there was you know it wasn't me but ms hughes not only had a plan to have this go down but she planned this with these other individuals and had discussions talk about the discussion with hughes and that she was going to set up a robbery so so that pushed the alibi that he wasn't there at all it does not push up no end in that that the alibi he wasn't there at all really isn't fleshed out in the record preview or post trial or anywhere sense but it is a very strong but but that that it gets a lot stronger with this additional evidence that somebody else had had the means motive and opportunity to commit this robbery and if the court has no further questions we would smith thank you the case will be submitted the remaining cases will be submitted on briefs and you major in court