stevens and the other justices found jack cheney's dissenting opinion far more convincing than the opinion in which i joined so i know a little bit about sleep but i'll be interested in what you have to say about it are fact driven so if i can just speak of the facts pretty fully first of all to put this in context i think we're familiar with the record so i can take the questions because of your time i want to make sure we we be allowed to pass through the gateway and actually reach the substantive claim which is right in violation how do we know that this witness is credible well your honor i think by examining the record though that's something we should determine at this level that i can show from the state's own evidence there's nothing in the record that disproves what i'm saying to begin with the only ever going up against the state had was one guard who witnessed the very end of the attack nothing that he said or witnessed courtroom and neatly tailored when he took the stand his testimony to fit perfectly into the testimony of all the other witnesses so domingue that mr graham wasn't coached to say asking about the evidence you're hearing is because it gives me this case is covered by so if it is does that affect the your burden of proof at this stage in order to gain an evidentiary hearing well your honor that question was was not actually certified been course i have looked at that minute the state did raise that and i would say that no it does not courts including the supreme court have not applied the clear and convincing standard this and that to the case of the actual innocence or in this circuit court has decided not to decide whether or not it applies in several cases the most recent being  bart case the the strong arm and i can scan we we sort of take the question well or refuse to answer it and if that is this positive to this case i would i would certainly be happy to brief that and go into it but  begin with your honor no court that i'm aware of has ever said that this equitable remedy that was created by courts to prevent a miscarriage of justice is going to be applied with a higher standard i think were trying to pull them apart and they were trying to save their friend that's our contention is that the few other prisoners we're trying to say and mr harm you know they jumped into the fight and nothing knowing that that's that's a lot of was stabbing him we can tell by the timeline you know how quickly the guard responded that this all happened just instantaneously we also know that mr abate who was still alive at the end of their attack he didn't actually even die until he got to the hospital so as far as mr armey is concerned he's still a deadly threat to him and under the law of self defense that's a lawful killing in arizona from any exonerate him from any kind of criminal punishment to paraphrase another certain court if mr harm you know or an executioner and committed a killing was prosecuted for murder he would have committed the killing but he would be actually innocent of the murder and in arizona him the only testimony that was ever entered by a guy their own was the post conviction and the prisoner testified that from day one mr harm you know asserted that he was innocent and that he did not want to plead did you have any questions before mr ows steps down oh thank you council will give you two minutes for a bottle since then stay what over a minute if we look back in the record of the incident reports there's no description of how anyone was holding anyone and there's even a variance between the number of stab wounds that the guard actually witnessed between the grand jury testimony and arizona once a defendant raises reasonable doubt about self defense the burden is upon the state to prove beyond a reasonable doubt that it is not self defense in other words the state has to prove beyond a reasonable doubt  unlawful killing because if it is self defense it's a lawful killing and i'm worried because i think that from the inception of this case because these men were all inmates and they were locked away in a i asked the court not to let that color their opinion on this to take it in context look at the circumstances that they're locked in and together but to not let the fact that they're prisoners colored he's advance i think that there would like to point out finally that this isn't impeachment evidence this isn't a battle of the experts this isn't some kind of weak alibi we're talking about a lawful killing committed in self defense but here you know on the application and i think perhaps the supreme court might agree because the calderon be times from in in school i think just seems very clearly he wasn't talking about necessarily somebody who actually wasn't there and he was talking about having confidence and the hasn't had to face and that's particularly serious here where we're talking about an underline brady claim where this evidence could have been there in the beginning and we wouldn't be here some nineteen years later and if so i understand the answer if the state had charge first degree in this case and the evidence that come out and the jury concluded would have concluded that there wasn't premeditation but they could find a second or manslaughter you still