case is very limited he seeks only to have the procedural bar lifted so that his constitutional claims can be heard on the merits and as this quarter's aware first federal haiti's petition is a particularly thirty or thirty four days well then how does that break down between the library which i haven't fourteen is that correct the library closures were fourteen case ok so then the copying side of it would be but he only needs thirty four but we need thirty four ok ok all right help us with with how you get to thirty four you need you need the library plus part of the that he still could have performed whatever steps he needed to perform without the library being available no that's that's definitely not the case  what is your argument in the library the argument is i mean he certainly he could have filed just a piece of paper with the court without having a library and you can't in possibility can't be taken to the extreme he has to be able to file his petition as the supreme court has made clear in balance and other cases we can't we can't impose on him he can't we can't say well he could file because you could file an inadequate petition in this case procedural requirements for his petition any law books needed to draft his petition he had i think it was twenty four additional case thanks in his federal petition that were not in his state in order to find out in addition he said he had to address the issue of procedural default which was a new substantive issue and he also needs a library for that so that's why he has all the new case in this federal petition to treat this as an actual innocence gateway claim which is a different standard and so i'm asking you what's the standard that we apply the standard is whether the court can have confidence in the outcome in the way that shot his wife five times and he was convicted for second degree focused precisely the terms of second degree and then the elements of second degree or can we look at it in terms of another category of murder well is that in a court made clear that when you're looking at a plea conviction as in this case in addition to looking at the convicted offense the court must also assure itself that he would not be guilty of any other offenses that with which he could have been charged that were foregone in the plea will in this case that would be first degree murder but since he's not guilty of second degree he's also clearly not guilty of first degree murder and so does that is your question not not very helpful i'm sorry are you saying that there is level of the degree of crime and actual innocence applies in that case the court may clear with the use and carry distinction that the elements of the particular client crime have to be satisfied and another example would also the nine one one transcript which i think is the most probative evidence that we have of his intent we also have evidence of his wife's provocative behavior why is all the new evidence and that's new evidence because as this court and the supreme court have made clear that that evidence is new because it was not presented to the fact finder it does not need to be newly discovered and that is true and where the evidence was available at the time of the trial and