that the motion failed to meet statutory requirements we have a case where my client rafael kiro serving a life sentence and there was no evidentiary hearing even though two people said that he did not commit the crimes which he has been convicted so what do i have in this record that it suggests that the testimony over a board told or of the attorney would differ from the decorations presented because it seems to me that the district court made this decision saying ok i'll assume what they say is true and none the less i am going to decide this motion well your honor that i mean i'm trying to say what is there that they would have said that would have said more than the record they are that is the standard but the the court actually didn't follow that kordell act and it just meant it it seems to me that you're not really arguing the record is an accurate or adequate but you're arguing the judge did not make his decision on that basis right right because he had he reviewed the evidence and rejected it yes that really doesn't say need to have an entry hearing that says he misappropriated or miss reviewed the evidence does nothing about that also your honor but well it seems to me that then we're not really thinking about whether they needed an evidentiary hearing but whether he reviewed the evidence correctly i i mean i'm trying to understand your argument right as i thought the judge went through taking i mean he said in reviewing the probative force of the new evidence and to the extent to which the facts are alleged in the declaration if taken is true nonetheless and you say no the nonetheless is wrong so i don't know why the hearing would have been necessary things one can get to the point where he may be wrong and we'll talk about that but i don't know why the hearing was necessary the hearing would be helpful ya know because part of the argument of the government is that there wasn't enough detail in for example roberto curiosus declaration that something that if there was ever an ensure hearing mr carroll's report on the stand and the council could go through all of the evidence that was presented at the trial and a secure oh so weak subject to cross examination that would allow both the court and the government to see what the evidence was and to determine whether or not it was enough to show that the to have him show up and testify and we don't even know if that will happen while we were assuming that will happen and that's again the standard is that the court should assuming that the that th establish the truth of the facts contained in the declarations that in fact what the question is whether that would be enough in order to know i guess that i have the same issue with it that  is struggling with and that is that assigned firm the brother may be clarifying some things in his affidavit which he would have had the opportunity to do by means of a clear affidavit i'm not really sure what  what hearing would accomplish what else are there other witnesses she would call to or you're out of the at this point these would be the two primary witnesses that we plan to call and again the same ones that have the f maybe that's right ok and as again in terms of roberto he would be a little fill in more of the details that the government claims are not provided in the declaration so that we can show that in fact that was that mr that my client rafael was probably innocent of the crimes here we have the main is that the standard or is the standard that and more and more recently in the gym mellow case this court has said that in in cases where you have a freestanding actual innocence claim that quote the showing has to be more than just undercutting the evidence but show that the person is probably innocent and that's the standard that was used again in character they distinguish between the freestanding and the gateway innocence claim jamaal oh just look at looking at the the actual innocence claim specifically cited character for the idea that a credible confession by the actual perpetrator of the climb was exactly the sort of evidence the emphasis on credible i'm sorry with the emphasis on credible credible right but your honor in this case we have roberto and again the government and the district court tended to minimize that because he wouldn't be  because he there might be a statue limitation issue however he's been a fugitive all these years and so particularly in connection with the state crimes that he was fugitive from state crimes initially all that time would be told in terms of any sort of air in the underlying trial right well that was the initial i was an initial part of the claim your honor was the ineffective assistance of counsel having to do with well i understand that but as far as the error of the trial it seems to me that you're really not saying under the first theory bringing this claim if you will it's a gateway to bringing this claim procedurally barred claims and that constitutional lawyers occur to trial i don't think we have any of those here do we that's right or are based on and on the ruling and the stiff going to appeal billeted that we have here where we're not dealing with that and the trial and so therefore i have to go to the second theory on the second or successive  are you suggesting that that is what the we ought to base this on that standard review well i mean i'm thinking even that this isn't really a second or successive but that we're on the third theory assumed the ninth circuit and the supreme court of both assume that such claims are lies and all they didn't assume they said if it is so wills that will rule is they then never say that that is legally they said we don't know whether it is what we will just say it is and then we'll give you some help isn't that what they did that is what they did your honor they said if it is cognizable this is what you would have to  show and your honour's correct that they haven't found such a showing in this case though as i say we've got the credible confession which all i'm trying before you get to that i'm trying to figure out what should be my standard or a view it seems to me that if i go with that he must at least meet the preponderance of the evidence standard right what day and carried the further maybe more than that in character they seem to be saying it was schlep which is proprietor and with a little more because they distinguish between the gateway and it's of selling and all then it should meet an extraordinarily high standard they do they do cite that your honor although they seem to apply as i say the probably innocent standard that's that's used in both character and were much more easily in jamelle lower than in the morris case again and again all those cases look to the servatius i'm a representing the united states in this case i was also the trial attorney at mr curiosus trial so i'm familiar with the case from from the ground up in the let me let me ask you the following question i preponderance of the evidence probably innocent would we even under that assumption reject his clients because of the other evidence in the case and if so what is that yes your honor in this case and when it comes either to the twenty to fifty five h one claim of actual innocence or if it comes to a freestanding actual innocence claim the supreme court in this court has made clear that it's a probabilistic analysis it's a holistic analysis you're taking the evidence that was provided by the defendant and that's what i'm asking you tell me tell me why we should view the evidence in such a way that it's in the government's favor alternately even if we apply the most favorable standard that it's been requested if looking at we're birdo declaration it's very clear that he wasn't familiar with the charges that were that raphael was convicted of essentially roberta claimed that he had purchased or at least all the properties that the labs were located on not his brother there was only one laboratory that was even attributed to rafael curios and that was one that mr plant carty who was one of the prime witnesses against the defendant had no knowledge of the defendant rafael curious was in the country he purchased the property and harris california his brother in law was found there cooking methamphetamine and there were all kinds of ties of raphael keros to both that property and in fact mr curious themself admitted that he had purchased that property and ties both to the individuals who were involved in making methamphetamine the property and the financial transactions i take it also are inconsistent with the brother's claims yes your honor there was financial information that was provided when one of the the laboratories was located in sutter sutter county and mr klemp our playing card he testified that he had his fingerprint was found at that lab and he testified that he was cooking there on behalf of there were other individuals that planned carty identified as well and during searches of those people's properties back at the time of the laboratories discovery those individuals had phone numbers for a field heroes and those individuals keros and mr curious when confronted with with that evidence it made it that he had received those wire transfers from those individuals but he couldn't remember the reason why they were being sent so there was other evidence that connected mr curios to both the conspiracy to mr plant carty into the drug activity some of that connected him with with his brother plan carty testified that both roberta in raphael would on occasions work together and on occasions they would not and that he worked for both brothers there was another informant in an independent investigation who worked for the i r s in mexico and he testified that mr cure us both roberta raphael and some of the other brothers had come to mexico to exchange money and so he testified that the brothers had admitted that they were involved in drug trafficking and he identified mr curiosus one of the individuals who was involved in i think they exchanged approximately two hundred thousand dollars  s currency and that it was rough who told that informant that he wanted to set up a money exchange in los angeles so they wouldn't have to bring it across the border so this is the type of evidence that isn't accounted for in roberta's declaration in addition roberta's declaration fails to even set forth his competence to know what his brother was involved in when he wasn't involved with roberta so all he would say is that rafael keros had a ranch in does the court have any other questions so i was to plan card or do we say about his recantation i think what the court has treated as is somebody would testify that plant carty claimed that he made up that raphael was responsible not that plant carty recanted but it's more of an into pietschmann statement that in a later time playing card he said what i said wasn't true and when evaluating that claim once again the court has to take into account the timing of it the circumstances of it and the likely effect it would have at the trial if the testimony was by this unknown resign or standard statement was said to a non adana fide relative that's so yes your honor and that he refused to come forward himself according to the relative and he originally said that both the defendant and roberta did the crime and now he changes to only  it that's what the unknown relative claims so if that if the endo relative were to testify at the trial in light of all the evidence that was presented at the original trial what would the likely effect be on a juror would no juror be able to convict the defendant in light of the fact that ten years later mr plante carty gave an excuse as to why he testified the way he did and i think that that's what the district court was evaluating and what the standard is could no juror convict if this additional evidence was before it trial oh i think i think we also have talked about the suspect nature of recantations and that is perhaps curry favor as to the government made him do it so i think that although even assuming there was an actual innocence claim that was free standing this is one of those cases of the court  repeated repeatedly found that the evidence is insufficient even in character with that was both the gate keeping claim and a free standing claim and although this court found that credible that a credible confession was sufficient for the gate keeping claim even that was not sufficient for a freestanding claim in light of the other evidence at trial it's also my understanding that there was really no evidence that any of the meth labs were on lease property that's correct some of the statements that were burnell made did not fit with the actual evidence at trial mr curious admitted that there were several residences in the united states that he had leased at various times these residences became part of the government's evidence is showing that the other conspirators were in connection or in relation with mr curious during the time of the activities however the only properties that the government had presented is evidence at trial mr keros actually admitted that he lease the residences but no labs were found on them and that the let the residence where the lab was found that he had been the one to purchase it the parish property correct i also understand i'm just trying to make sure as i'm trying to compare the affidavit to what i think the evidence was that there was no evidence that the military i d or the passport or the residency card or the work permit were ever used to engage in the transactions of the drug conspiracy correct the only time identification became an issue and distinguishing between both were birds and raphaels was with wire transfers and it would be very  that identification but again that evidence wasn't a ever attributed to raphael keros that was never even connected to the conspiracy so in this case although roberta is attempting to take all responsibility for the crime given the fact that it's confession has so many errors or inconsistency is with the trial evidence and the fact that it is so general it just isn't the type of reliable evidence that would be sufficient to support a  berto they didn't know where he was they had my client in custody and that is the nature of the claim is that the government was only going to give him the sin significant reduction in sentence from thirty years down to evidence circumstantial evidence mr plain carty was the one that the government relied on to show how the whole organisation worked and what was the one what you're really arguing it seems to me is the lie the first time to get a deal and so this is good evidence we had to rely on yes because it seems a little tough for me to sorry lies the first time to get a deal but now he doesn't lie anymore when he has now served his sentence we evaluate the reliability or the credibility of this statement that plane carty has made to a relative was made to an attorney it's presented to the court that it's sufficient to warrant the relief that you request well again that the the or they're supposed to consider what the what the movie would be able to show if everything were true obviously we have to get mr playing card here to testify about this and that's something that that has to be dealt with down the line but in terms of what he would be able to say we need to assume that in fact he would he would say that and even though the court has expressed concerns a alone in this case the recantation is reinforced by the confession of roberto but was not at a time like before should we should we evaluate plan cards proposed testimonies the government has suggested as potential impeachment from after rejecting completely the playing card testimony the court then use that also to undercut the confession berto and even though again the government said well there's different testimony in terms of the property but the government's focus was on raphael and so whether there were other properties that were leased by roberta oh they didn't focus on that they focused on the one property that in fact and the paris property ri who who least the property or who owned it except when when they could pin it on that the government was not trying to show that roberta was doing anything that was that was contrary to their interest that defense counsel some extent was trying to trying to suggest that but there was not much to go out there were a few the few times where there was this identity issue it wasn't connected specifically to rafael and so it really didn't