honors the bottom line in this case is that chris's case should be reviewed on the merits and has been caught up in a rabbit hole of procedural defaults through no fault of his own but when the merits are reached relief is clearly warranted and the majority of the briefing is on a very complex procedural discussions but today i would like to focus on the actual and its innocence gateway because it's very clear that chris does satisfy the standard so i'd like to focus on that and then move into a discussion of the merits on his two strongest claims grounds one into the brady violation and the variance between the evidence presented in theory of case and grounds for conviction been and this is where the core are you really change the basis for his conviction at the trial at the trial level but this is during the trial at the close of the trial this is after the trial and the motion for  based on the undisclosed lab notes that christa morse kristoffersen it wasn't the one who committed the robbery but a witness put him right there in the car there's a lot of evidence that puts chris smith involved in this i have no doubt that both of these guys were involved in this and committing a lot of opinion joined by different justices it different parts but the one of the thrust of the supreme court in that case is that we can and should use the record that exists to give meaning to summary denials and i think those those statements by the trial court very important not just for the argument but also the brady claim in the variance claim grounds won and grown too because if you have the trial judge basically changing the basis for his conviction to a unproven theory it's very important to note that the state in this case rested its theory entirely on christmas being the gunman they put forth no evidence in fact they put forth evidence that he was not the driver that he was not the accomplice and as we know from the d n a he was not the gunman he his d n a was completely excluded on all pieces of the costume we learned from the d n a expert that he his d n a was on the wig and the t shirt and the sunglasses from wearing them not from briefly touching them like the originally concluded he made comments to that effect on the record that he originally believed that christmas d n a was on the whip in the t learn from the brady material the undisclosed lab notes and the accompanying d n a experts testimony dr hynek is that his d n a was heavily present on the wig and the t shirt showing that he wore those items and then the new evidence as it pertains to flu was d n a testing conducted on the sunglasses that originally had come back inconclusive d n a testing then came back on the sunglasses and again to try to alan completely exclude  christmas we have everything pointing to charles allen nothing pointing to chris smith this is all new evidence to back up just a minute and talk about the sort of accomplice liability theory  it's true that you know and in many instances a prosecutor will have a case against more than one person working together to mimic to commit a crime and any of those people could be convicted for the principal offense if you know the prosecutor does not know their role in it or it's just a group effort but here the state went out of its way to put on evidence that he was not the driver the only eyewitness in this case thomas moore was very clear he put him in the state put forth no other evidence they so that it is that they did put forth was chris smith is not the driver he is the gunman and then we have this d n a evidence some of which is new to satisfy the standard that charles allen is the costume or in gunman that's the trial court's original theory that maybe chris just got lucky and that charles briefly touched these items that was also eviscerated by the under  feuded testimony of dr hynek and the motion for new trial based on the brady violation and that's that's all just to focus on the d n a evidence there are so many other pieces of evidence that point to charles allen as the tandard used the wrong standard and this this actually is a clear cut abuse of discretion they'd the district court applied a definitive standard where the correct standard is a probabilistic standard the district court determined just that no reasonable juror would convict based on the new evidence but the correct standard is is that more likely than not that no reasonable juror would convict based on the new evidence can be considered with all of the evidence what would merits because well starting off with the sleep standard because it just applied the wrong standard and that is abuse of discretion this court is able to apply a do over review on that and just determine merits i think that has happened but i think the court of appeals definitely has the discretion to make a do novo review here and make its own determination in fact even if we did that slip it's just a gateway to present  not asking this court to do that and just order relief for your client or you i think that this court has the discretion to do that and apply it to no go review because i think it's arguable that there were decisions on the merits based on the the supreme court has said in harrington when there is a summary denial which chris had many summary denials unless there is a specific citation to a procedural rule that's to be assumed to be a decision on the merits and so i think that there there's an arguable basis to say that these claims did have a merits review he just lost on them and the score is able to make a determination on those claims on the merit s and they certainly on the you can see because generally that there is a remain and because we didn't see the testimony we are not we are not judge of credibility of witnesses if what matters is that the occur standard be applied wouldn't we say here's the correct standard now you as a trial court exercise as the duties of the trial court and take up the entire record and make the st determination on the correct stand i do think that that's a possible remedy but i also do think that this court has the for reopening long final convictions right it is supposed to be an extraordinary case so here we have evidence that was presented to the trial court the truck the evidence that was presented to the trial court did show that d n a was the smith was excluded and that allen was included and all we have here is further evidence to support that claim it's definitely more evidence that there were more of you know many low side wigan on the t shirt how is that extraordinary well i see my time's expired but to answer your question it is because dealing with the sun glasses there is no basis in the record for charles allen's d n a to be on those whereas previously with the wig and the t shirt you could make some far fetched claims me ask one more question so you were trying to counsel you had the sun glasses correct the sunglasses were not hidden from you you tested well after trial why don't you test them at trial they were tested the state tested all of that our request and it came back inconclusive and then when the brady violation occurred and we obtained the requested lab notes that were suppressed from us the expert that i had review those also retested all the items and came up with charles allen's d n a on this there's no reason you couldn't  suspicious at trial of the government's d n a testing you could have tested on yourself at the time of trial otherwise we're going to have i mean if that then what we're saying is traffic counsel has an incentive to not have certain things i mean if you had tested them yourself maybe your client would have bet on this and that would have been bad for you so we don't want to create sandbagging incentives here no absolutely not  but we actually were not suspicious at all of the d n a tests and we were thrilled with it and we felt no need to retest when charles allen had been identified on the key pieces of the costume and christmas was already excluded we had charles  fingerprints we had charles allen on the stand that i just don't understand why it would be available for you to do a task that you had no incentive to do then but then you decide oh well maybe i'll retest them  later this all occurred because the state didn't disclose the lab notes that were requested not once not twice but three times and with a motion to compel i'll let it go but i understand that but the lab notes didn't reveal anything about the inaccuracy in the government initial tests to make you think oh well they messed up the initial tests and now i need to retest them either and also test the sunglasses although again we were thrilled with the results of the d n a testing and felt confident and we have recordings of charles allen talking in st person about the robbery we had another witness who said charles on confessed we felt confident with this and confident that the trial court was going to make the right decision we were told that those lab notes didn't exist and then and that and th en when the state did say oh we do have these lab notes and we had the expert review them and her feuded explanation of those lab notes disclosed that the trial court's theory for convicting also is blown out of the water you know we have that that's that's the brady violation but the sunglasses that's that's new evidence that goes to sleep we weren't saying that the sun  brady violation but again just to be clear we didn't have a reason to question the d n a testing at the trial level because it came back in our favor and any reasonable fact finder would not have convicted smith to begin with based on the seven through that would be that would be an alternative but with all respect and i'm aware of the court's decision in mclean v kelly where there's a a long analysis of twenty six dollars b and effective assistance of counsel dealing with gunner martinez and all of those i'm aware of that but with all respect i don't think this court needs to even get into that because the sloop claim is so strong here with the new d n a evidence combined with all and just to touch on your previous point about this court making credibility determinations the supreme court actually said in house bell that when when the standard is being reviewed that the reviewing court can make credibility determinations that you are not stuck with the credibility determinations made at the trial level so that's another thing to keep in mind because there's a very helpful th circuit case us we've designed that was presented actually to the trial court it's a two thousand and nine case out of the th circuit where in adjudicating a denied request for d n a testing under the innocence protection act they faced what was seemingly a very strong case against the defendant seeking d testing there it's similar to chris smith's case there were four eye witnesses his vehicle placed at the scene surveillance camera footage a bank note given to the teller the demand note with his fingerprints on it and in light of all of this the th circuit ordered that there should be d n a testing and the important point here is the quotes given by the th circuit they said that if the d n a excludes the defendant on that the pieces of the robbers clothing that were recovered which is a hat sunglasses and t shirt eerily similar if the d n a excludes a fan and comes back to another person d n a on those items there's a reasonable probability that the defendant didn't commit the robbery the d has forced the legal community to accept the reality that eyewitness testimony is weak and here what we had was original d n a testing the already excluded smith the trial court latched on to some farfetched theories that maybe threw touch record for his d n a being on the sunglasses the state didn't refute dr hynix testimony it blows the trial court's theory out of the water and we have to accept that the eyewitness just got it wrong  medleys the court good morning i'm bill hamm i represent the warden in this case i came here actually to discuss procedural default and i'm going to do that but since restarting off on d n a i would like to clarify that issue  t if you look at the testimony of a defense witness julie heinecke or hennig she balks she never buys into the defense theory of the case that because to take the wig that because the d n a of allen was on the week a a beyond there so read her testimony carefully you'll see that she never buys into all of the ramifications that the defense has presented concerning this d n a evidence it wasn't her testimony that testimony if you're looking at action that is to say that he didn't wear a wig i don't remember frankly i think he said i was in the vehicle and smith jumped in the vehicle and he told me to go and we drove off i think that's what he said that was his contribution to the case now i'd like to come back to what you mentioned judge larson on actual innocence if the testimony at trial was the same that the d n a on the wig was was attribut yeah that's a pretty that is a an important difference and then you have the sunglasses which your opposing counsel notes it is entirely i don't i don't know quite how that fits your again d n a doesn't tell you the not tested and or it was tested but we now have a new test that was done but defense counsel could have tested those sunglasses the sunglasses weren't hidden by the state she had physical access to th incriminating or how they particularly relate to the robbery in terms of the time of the robbery was committed i may not be understanding but i think i think defense counsel's theory is they're exculpating because they have alan's d n a on them smith's and that was not presented that fact was not presented at trial and so it adds to the defense narrative that they got the wrong guy so that's why they would say it matters for actual innocence looks like it's cumulative to me or the wig testimony may i make a transition to procedural default if you don't have a question on your briefing on the burden of proof you know that smith has the burden of showing i want to be sure i'm getting it has the burden of showing back clear and convincing evidence that no reasonable juror would have found him guilty that's in your brief but isn't that the very argument that the supreme court rejected in house and that's not the standard is it can't think the standard is by preponderance of the evidence which always rests on the petitioner the  is but i interpret that language is a burden shifting language i had to describe that is proponents of the evidence that no reasonable juror would have found the appellant guilty beyond a reasonable doubt well then how do you explain the more likely to not one go and i think that there were likely to not language is expressing the preponderance of the evidence standard wouldn't you think you have to apply the w to greet you do that but me i discussed procedural default the best way to get into this procedural before question in there is a very complicated but i think it's unnecessarily complicated i would like to suggest that there are three ways not to decide this case as a way of explaining why procedural default rules out all of the claims except leave seven in the post convey petition exhibit fifty the state court of appeals applied to time in this and fifty three point two three a one day well the state court did not apply its own exception to the time in this rule so on what basis does this court say you state court apply that exception that's the  cumulative or a wouldn't have mattered it wouldn't be reasonably probable that any fact finder we have a trial court here but that any fact finder would it would have made a difference to any fact finder that was distinct from what the klein's over the argument or the discussion he had had on the record during the trial itself it seems to me you've got the very fact finder saying well if this is true then here's why here's why not granting a new trial i thought he said really correct me if i'm wrong that both of these people were involved smith and well that's distinct from i know the eye witness and and that the information that's in the record tells me that mr smith is the one who committed the robbery and so what if his d n a is not in some way on this wig he it might just not have shown up and mr brown's d n a he could have just touched it but the new evidence said no that that's not possible so why isn't that and why is it doesn't matter how much d n a is on the wig for it from alan it doesn't prove allen to me that the robbery and only alan committed the robbery and because this d n a is not on the week it doesn't prove that smith did not possibility of touching the wig or the sunglasses does your doesn't your argument rely on you on that very assumption that that the expert does not say that this information indicates that allen wore the when the expert does not say anything that contradicts the state's testimony at trial that matters but absolutely not and it's not a question of interpretation just look at her testimony she books she never buys into the defense theory of the case regarding d n a and you think it does not change it does not change the eviden not evidence but the conclusions of the court in this case based on mr allen's testimony that i did not wear that wig i did not have that wig i did not wear those sunglasses but it doesn't matter you mr allen is not a particularly reliable witness but where you have here is for his actual innocence is concerned you have a good reliable witness mr thomas moore and what allan says are mean when you have an eye witness  significant in this case because it states the expert for the defense doesn't add anything to the case that wasn't already a trial and the sunglasses not qualify in your estimation why they don't because it's cu because it's cumulative of what we have sunglasses that there is estimate he says it's inconclusive there is no d n a on the sunglasses and now we have sunglasses with the d n a of of the witness against the the two concepts don't match i'm struggling with that because it seems to me that that could be an excuse for anytime there's effective d n a testing you think of the other  cases i think the case that you're opposing counsel mentioned where are the defendant had all along declared that he was not the right this but there was all sorts of evidence around  it he said he thought their theory was it was the husband and then the d n a evidence came back and the husband saemon was on some of the of the clothing under your argument the answer would be well he was the husband it could have been there anyway it doesn't matter but the court didn't see it that why didn't the court think that that d n a evidence might it defines minutes and minutes and minutes talking about things that don't matter we've never gotten to pull no good give me i would like an answer to my question about why the d n a evidence in the scenario in this other case wouldn't be susceptible of your argument and why that might show that your argument is perhaps not recognizing the significance of d n a testing in an actual in an actual innocence come on the d n a testimony in this case does not thirty seconds to talk about procedural default the proposition is that smith for the application to reopen smith wants you to apply an exception in the rule that the state court did not apply but you can't do that and as for her counsel trying to explain away the d n a are just not sound and not reasonable were were asking for reasonable must test here and if this court were to adopt my opposing counsel's position it would mean that d n a testing just has no no meaning no significance and that that can't be the case because it's objective evidence that doesn't lie doesn't have its eyes deceived like eye witnesses often do i would like to point the court to  answer judge larson's question about why because the evidence was presented that chris smith was not the driver and we have all the subjective evidence that he was not the gunman why relief is granted on that  basis another point i think is very important with connection to the d n a evidence that we can't lose sight of is that chris smith requested this d n a testing he requested it at the outset and as soon as his parole officer contacted him his st remarks were when he was told we found a costume that the robber was wearing he said good run the test yeah your honor i was i was responding to opposing counsel's argument about the d n a not really matter and i think it's important to keep in mind that it's not just luck that his d n a wasn't there counsel is trying to suggest that there is some sort of timing element if you ever touch let alone where something you can't be confident enough to say run the test i know my d n a is not going to be on to it on and he made multiple requests he pleaded for that d n a testing and no we did not retest the state's evidence at that time because we didn't need to he's an indigent defendant we use those resources to hire a private investigator who ended up recording charles allen talking st person about the robbery and then again on the jail line saying he was angry about being wired up where he talked about committing the robbery in st person so you have to think about the resources the indigent defendant house as well that we didn't need to retest d n a evidence at the time when we already had the results that we saw it and the testing occurred because of the brady violation are there any additional questions