good morning may it please the court my name is david porter and i represent petitioner robert henry in this matter simply put the crime for which my client is serving life without possibility of parole special circumstances murder never happened i'd like to first address the court's recent order and the first issue being whether the certificate of appeal ability should issue on the actual  this court is well aware the barefoot first is a stealth standard is a very modest one that is is the issue reasonably debatable among jurists of reason frankly i don't know many issues that aren't debatable among jurists of reason but the fact that this court took almost to the fact that the district court took almost a decade to decide this this case is pretty good evidence that the issues are debatable among jurists  reason now the evidence that was presented at mr brewer's trial particularly the testimony of jeffrey taggart charles austin and pamela conyers is the best  have to show that the crime charged against my client never happened and where he was your client was tried and convicted of first degree murder that's correct no lesser included offen l i l o instructions with no finding on any lesser included offense that's correct they came they came with a verdict on first degree special circumstances and the principal charged with conspiracy  or anything like that that is correct s he said that mr he said that shots were fired out of the car and that those shots struck mr turner the victim but he did say who sorry he said he believed that he wasn't sure was his testimony was was not very definitely wrong and then brewer goes to trial separately a year later because in geoffrey or just in the declaration of geoffrey taggart that's attached to the federal declaration federal petition mr taggart did not understand what transactional immunity meant until he was told during mr bruce trial this is what transactional immunity means you cannot be held liable for that event and the testimony that you give today cannot be used against you so in the henry trial when he thought he may be under some jeopardy he didn't tell the whole truth that's correct and once we understood that he was home free he told the god's truth the light shone in the courtroom  taggart was represented by by counsel and that counsel presumably did not tell him what transactional immunity meant or at least conveyed to him in a real in a manner that he understood what transactional immunity met and clear just a couple more things were you know was there evidence you're hearing industry court you know there was not talk so the district court did not hear from the brother the independent witness or the forensic expert that is correct and i know that this court second issue was whether the case should be remanded for an evidentiary hearing i believe that's really not necessary in this case we've actually had something better remember this happened a long long time ago at a time when memories were much fresher and racial difference than it was a third of the focus of quite properly so both the history trial in the birth trial where is the responsibility of the factual responsibility of the individual defendants in those trials for what happened in those trials necessarily focused on whether hillary was responsible for the chain of events legally and whether brewer was responsible for the shooting death of mr johnson neither of those proceedings focused on the relationship between these events because the testimony in the authority of this court that was not cited by the attorney general character versus stewart clearly stands for the proposition that there are such things as free standing claims of actual innocence under herrera in fact that court went on to say this is the proper standard for such a claim and did exactly what i'm asking this court to do mr henry is asking this court to examine the evidence to determine whether there has been a truly persuasive we recognize that the claim that the standard is necessarily very high but that doesn't mean that the court should not engage in the in the examination proceeding is actually innocent of the charge for which he was convicted and is serving a life sentence the court's powerless to examine that was the holding of kohli and herrera for non capital herrera or the standard articulated in character by the ninth circuit which is that appellant must not merely cast doubt as to his guilt that he must actually come forward and affirmative prove that he is probably innocent that is a standard that he cannot possibly reach on the evidence that he presents now to the district court conduct any examination the only finally that the newly discovered evidence came nowhere close to meeting the herrera character standard thing i could find in his order that address that was he said that the confession just wipes that out right in two thousand and five that's what he said that the found that even though there were multiple declarations another man confessed to the crime and the central forensic evidence the blood in the steam and was called into question so well that did not reach the extraordinarily high standard set by herrera of proving probable actual innocence the shop standard yes but not the herrera standard it also explained that the doctor ations probably could the that this would be an entirely different appeal that there have been unable to ensure here in the district courts that ok i've heard from the brother i've heard from the new witnesses i've read the cross examination i consider the forensic evidence evidence must be considered in light of all of the evidence of guilt presented at the trial which was the paramount event in determining guilt or innocence and this paramount event in this case occurred twenty years ago what we have is some conflicting evidence there was evidence that appellant's trial that brewer pulled the trigger jeffrey taggart his brother told the police that before the crime appellant described the drug deal gone bad he just talked about shooting mr turner and then mr brewer immediately following that conversation went and retrieved a sawed off twenty two rifle at the scene of the crime if you like repeatedly threaten mr turner are saying you're going to die he then just mr turner this is the guy this is the guy the wrong man was shot that is true but afterwards there is testimony from multiple witnesses result of the worth reading the murder trial the brewer i'm sorry i have hearing impaired and the result that he got second degree murder and it was found that he didn't use the firearm and there was different testimony  in jail with mr brewer came forward and has this whole new story that directly conflicts with the evidence presented at appellants trial so there is conflicting testimony that i would submit that the evidence of guilt 's very important to note that there were two not just one witness who didn't testify at mr henry's trial but who did testify proves charles austin did not but also pamela connors conyers did not  was we don't know if she was unavailable or not we don't know the circumstances where she was she did not come forward until much later after mr henry's trial was finally available he was on the phone he was on the stand way to to resolve fairly this problem is to is to remain in it to the district court which said well i just don't believe jeffrey taggart the brother of the defendant i don't believe trial is charles austin this former felon he did not however remark at all upon pamela conyers a non relative nine fallon who testified whose testimony was obviously part of the reason why the jury came to the conclusion it did during