also different because of the merits in the status of this case my client was arrested in this crime a gang related related murder and when he was seventeen years old he's been in prison for nearly twenty years he's now thirty seven this better understand if i if i might you are argument about the procedural default for failure to exhaust and as i understand it what you  saying is that and correct me where i'm misunderstanding that it would have been futile to try to exhaust that claim because of your client's failure to raise a contemporary objection deprived the the new york courts of jurisdiction over its claim so that what you want us to do is to find that is earlier default excuses his later is that i'm i understand it correctly understand the question correctly halted at the trial level because it was before any of these cases sanchez said or had gone down than there was a letter to file before the court of appeals he did raise it before the appellate division not before the court of appeals and that is where i'm saying his default should be excused for cause because it would have been futile to raise it before the court of appeals because they had no jurisdiction to consider the  but you do acknowledge that the failure to raise the claim before the new york court of appeals constitutes default and procedural default by definition means that a defendant has not or the wor failed to present its argument to the state courts in compliance with the procedural rules of the state so in other words if if as you claim a new york court of appeals had no jurisdiction to consider the un preserved claim how can it be the case that your client defaulted by not raising his his claim before  honor when i was deciding whether to brief both of the issues whether he had to exhaust his claim before the court of appeals and then mother had established cause i thought the stronger argument was showing cause i don't think he had to exhaust his claim but i realize that there have been you know contrary arguments on that so i chose the stronger one which is that he had cause for not going to the court of appeals it's a very similar argument it's not identical to the discord in other courts have certainly by dissected and two areas but i think my strong argument is that even if he was supposed to go to the court of appeals it was still excusable because they had no criminal procedure law if you go through the cases that have raised deprived indifference they won't hear these cases unless it's been preserved there have been cases that have gone up to the court of appeals and they  not preserved or not and here are preserved in the trial preserved in the trial court correct so they don't they haven't heard this case these cases where they're not preserved and the the law in terms of what their jurisdiction as is very clear so i don't think you're really deciding anything in terms of what they would do i know that the prosecutor listening what they would do procedural raise the case of people patterson which was from one thousand nine hundred six where they say ok well our jurisdiction to hear cases if there has been no objection is there is a very very narrow exception for motive thank you but in those cases they said that the court of appeals jurisdiction to hear a case where there has been is very very limited and the court of appeals sufficiency of the going out on a limb to to say that they were excused and i don't think the prosecutor all point to a single case where there was no objection and yet the court heard the case on these deprived people any rational trier of fact could have found him guilty on the other hand under the actual innocence gateway it's a more lenient standard which is more likely than not a reasonable juror would have found  beyond a reasonable doubt in this case the jurors found him acquitted him of intentional murder convicted him of indifference murder but in this case there is no view of the evidence that this was intentional and i would submit intentional actual innocence but not case there was no new evidence it was a change in the law so obviously they're there approving of the bruce lee case just to stand for the point that a change in the law can be actual innocence ranchers because in this case when you say it's intentional the jury acquitted him of the intentional murder and i know that's happened in other cases too but here at the evidence that there was a really good reason for the jury to acquit there was a strong foundation for them to acquit on intentional murder which carries a much longer a possible life sentence as opposed to manslaughter at the time as the facts sons five to twenty five years i think that changed a couple days ago center at the time of the murder i'm sorry at the time of the trial and he testified that this is not somebody who was stable his statements were so inconsistent and the statements between green and matthews those two witnesses they didn't they were inconsistent on the agreement where they supposedly agreed one said it was grains that at one point it was outside another point he said it was in my room another time he said it's outside of my room how they got to the murder scene well it was not at all clear either green and matthews testified that they hated each other yet matthew said green invited me to come to the gate to supposedly witness a murder as it turns out green said absolutely not i would invite him to go anywhere when they get to the scene and the groups of the people on the rock and then you have the people who did the shooting and there was an inconsistent testimony about who shot first who had which gun  tend to doubt the us and even the shots that were fired there was there was a strong basis for the jury to conclude that my client coolio only intended to seriously injure green admitted on the stand he fired the fatal shot to the head and the other shot that was fatal as to the abdomen green testified that miller the codefendant who was acquitted based on the same testimony that he was the one shooting at the the abdomen and the torso so you have the two fatal shots by the two other at least be intentional manslaughter but there's not necessarily on my client's part an intent to kill if you're standing arm's length away from somebody and you're firing at fingers i don't think you're trying to kill them you're trying to inflict serious bodily injury but when you can inflict serious bodily injury you intend to do it and the victim dies that is manslaughter that is not intentional murder and the sense is dramatic and just because he's coming up for parole soon doesn't mean they're going to let him out there there have been a series of articles the defendant's upstate get let out later there's racial aspects to this that there's no guarantee he's getting out soon so what this is about after twenty years of him pursuing every option he has all he has left at this point is sufficiency of the evidence and all he can do and he has maintained his innocence despite what he asked to concede because of the trial evidence but he has maintained his innocence all it's left is this at this point is to correct a sense of the doesn't face a potential life sentence anymore for the intentional murder for which he was acquitted and for that preyed indifference for which there is no evidence whatsoever this is totally different than the other cases you've had it's not like a good tea arrows where there was a bar fight and somebody accidentally got stabbed and it was among people who didn't know each other this is not one of those cases like garbut where a girlfriend and an ex boyfriend end up in a fight and it's very heated and he lashes out blank lines anger injuring or killing the girl from but also accidentally slashing and endangering another person h daughter this is not the case and tell me are in which the defendant fired when he fired the victim was firing down a dark street and endangered the people there the and it's not like the case and where intent was negated by intoxication where the guy had gone to a methadone clinic and had three to four bags of heroin and alcohol all before the murder the evidence here and there or there isn't evidence of intoxication they said they were drinking and smoking when they got to the park but there is no testimony about whether that was one minute or one hour nobody said these people were drunk nobody testified as to how much they had there's no there was absolutely no evidence showing that these people were drunk that would negate the intentional aspect of this so that's why i think it's different than the other cases as well so in this case you have a strong basis for not being actual innocence and at this point it's just prevents him from serving a life sentence for something he did not commit and because of the mess the law is the only reason the jury never got to consider intentional manslaughter  what's the basis for placing on him the burden of proving his factual innocence of charged and acquitted conduct acquit all of those not just means that there was the jury believe the indifference murder and because another based upon the evidence presented it would not it would have a reason what your could have believed that he know who fired them but i'm concerned that if defendant multiple shots and of of the remaining shots most of them i mean there were basically two the extremities and were either grazing shot i the shot for the brave or i mean has to be one of the kill shots right it i mean otherwise he didn't kill period so i mean if i wave a gun around to hit some poor innocent observer out there to me that's deprived difference but not here but kill then it's to pray for difference murder because i killed the person but i just waving the gun around and hit the guy in the finger hit the victim in the finger that's not the  all right so and he didn't fire that shot did any other shot kill him before the shot they had killed him there was another shot they could have killed the victim would have but did i know when i shoot something in the hand i hunt but that don't don't hold out against me  so we don't know if he did or not but he did and with other individuals who find a fatal shot and he gaging in it i think so he was only charged with depraved indifference and intentional he wasn't charged with felony murder not like he was hanging out with a group of gang they all knew they're going to go out shoot he joined them and so therefore he's guilty by virtue of whoever shot him i mean  somebody else that he was hanging with because they're going to kill him having killed the person i mean he at it was never charged i mean cause it was the other individual so even if you didn't file a federal shot the shots fired by the other individuals you just assume does that mean no i'm sorry the other way assume he was procedurally bored because he didn't supposed to and he did does that mean he does not have the actual to be considered separately if we can say here is actual innocent that the other procedure parts were not for his review but in this case the change in law is not concede to and does not allow him to get through the actual innocence or can lead to a verdict you're given what we know now about what the war is and should have been the that's really but they're still just be arguing legal sufficiency and and the district court to have fact finding on that very issue if actual innocence could not satisfy one of the gateways there would have been no reason for them to remand the case for districts including this one have interpreted  the prosecutor just not cite to any other than district courts there is no circuit court that said you can only do this by by new evidence and that actual innocence cannot be shown by changing the law there is not a circuit court that has held that there is one that hasn't decided that's the seven circuit and there are the circuit the four others that said yes it can so there are district court sort of held up but not circuit courts and those seem to be going in favor of the bruce lee standard slope is just  me through what you sent it to the district court i would either want you to send it back to the district court because actual innocence can be shown by a change in the law and then the district court would have a hearing similar to what we're doing here because there are no there is no new evidence i guess technically given the passage of time the score could also decide the issue or remained it back to the district court to decide whether rea so the court of appeals made a very very clear that creates indifference murder applies to a very very small subset of cases russian roulette shooting into a crowd driving a car down the street that's not intentional crime when you just shoot somebody at close range those are not the cases that deprived indifference was supposed to get up until this this mess where the two crimes or being commingled all the time if it was an intentional murder could be if you're aiming for the head obviously you're trying to kill the guy if you're aiming for the chest where the heart is i think you're probably trying to kill the guy in that case still and in this case we've already disposed of the head one that was definitely an intent to kill the other one who was aiming in the torso area he didn't see where work was aiming and there is evidence that the rest of the injuries yes it is shooting somebody with a gun and flick serious injury if you're even if you're shooting at you know the fingers or the thigh or the buttocks but that is serious physical injury it's not necessarily intentional murder if you did not intend to kill and in this case the jury came back finding acquitting of intentional murder  and the other point that the prosecutor had raised that i want to address the fact that you shoot somebody or flick some injury and you leave them to die that is not deprived indifference murder the court of appeals and swore very specifically rejected the prosecutor's argument in that regard to those with the boyfriend stepping a girlfriend and the chest and other places and then he left her and she did die and that seek medical assistance for the injuries he intentionally inflicted and instead left her to die the court says that is not the law if it were every homicide particularly intentional ones would be converted to deprived indifference murders this is not that case this is intentional i think intentional to inflict serious physical injury and when the person dies when that is your intent it is a horrible crime but it's manslaughter you have  face life in prison and that is the big difference here and i'm going to your other questions about what to do the two procedural hurdles that he can get over he can either get over it by showing cause and prejudice which is the default issue teresa before the court of appeals or he can show actual innocence so that it can be addressed on the merits but either one of those would be sufficient and i would ask that it either go back to the district court for a hearing