oklahoma tourney general's office for respondents we are here today because the district court erred when it was found to assure overcame the one year statute of limitations on or at the state courts procedur without granting respondent the opportunity to file a merits response which resulted in the district court failing to acquire the correct standard of review under ed which cannot be waived and in failing to a court of deference to the state court to start with the district court's findings of cause and prejudice based on the alleged brady violations well let me and let me let's st talk about whether you were given opportunity  however choice whether to respond just on the issues resulting that could result in dismissed all and on the merits or just attack on the basis  have i'm unclear on what you're asking i'm sorry if you get it or well i'm looking at rule five of the rules governing forty to fifty four cases and he says what your answer should contain it uses a mandatory were it's contents the answer must address the allegations in the petition and then in addition it can consider procedural problems a prudent person if you didn't want to do that you would get some kind of an order from the court saying we're going to bifurcate that proceeding that was standing that rule yes your honor i would point out that limited the response to the motion to dismiss issues and then later gave an opportunity if it didn't dismiss to handle the mary so i i think rule five of oklahoma allowing us the respondent to file a pre answer motion to dismiss without going into the merits it's a matter of judicial economy or responded to be able to you have me anything like that i do not your honor what i have is what's in the briefs but with all the cases in which we were too late to file a pre answer motion to dismiss if we have procedural bars that may preclude the granting of relief and the routine practices if a motion to dismiss is deny it then the state would be permitted the opportunity to actually file a merits response and the district was the district court directive responded to file a response to petitioners reply and i would also point out to the court that that brief related to the state's st motion to dismiss  at was document ninety eight which was later deemed looked because petitioner was permitted the opportunity to amend his petition yet again would you propose any  this isn't quite the same as offer of proof because we're talking about legal arguments not factual statements but do you at any point propose anything further you would have said about brady or  here that you haven't had the opportunity to say or a look in your briefs and then i didn't see any sleep about here's the things we would have liked to have said if we could have done had that opportunity i think the boot brady issue was thoroughly briefed unfortunately the opinion gives relief on every single claim and again though the reef also fails to accord deference to the factual findings of the state court i was actually elaborating on the question about whether or not we said everything we needed to say about brady if this court is satisfied with the response of the marriage issue i would like to point out the the cause and prejudice that is correct so the big issue it seems to me is what what is new evidence i mean do we look at what has been discovered  or do we look at what wasn't the jury never heard disturbance correct none of it oh well the eight hundred and sixty dollars plus everything that's been trickling in after that that is correct the  passed and evidence that has been misplaced in witnesses have died other investigators have died it's difficult to ascertain exactly what happened the time to have raised these claims for when they were right when the the evidence was affect whether we have a mixed petition or whether we have when we can look at anticipatory procedural bar and we can proceed to look at the merits of these subsequent post conviction appeal it would not automatically be subject to lashes were it that would be speculative to assume that and it was petitioner stories to him and his petition without exhausting claims he should be required to go back if my colleagues will indulge me i think and this case is complicated in math and frankly this this is just like any other death penalty case i i think we were planning to give you a little extra time so go and say what you need to say and we in the same on the other side who think you regarding the alibi evidence i would also argue that the the issue about petitioners alibi being at the party was never suppressed because petitioner knew where he was the entire time he could have communicated that to counsel well done in the letters that never got counsel the letters we don't know where the letters came from and i would i would argue that those letters don't look like they've ever been mailed they're not folded they're not marked legal mail and if the sport used those letters they also look like maybe they were discarded equally as plausible or perhaps worse so there are stains all over them that could have been a rough draft that was never presented and perhaps discarded what is in the record is that petitioner was an almost daily contact with his counsel during the pendency of both his trials and it's unrealistic to assume that he never told his counsel where he was on the night of the murder while he was facing the death penalty except in a single letter that just was never you know mailed or marked or anything i think that's unrealistic also if you view the the evidence that the surest presenting in support of his claim that he was at the party all night none of those affidavits say this shit was at the party online at best what it shows is that he was at a party which was good as his confession video that was before the court and the jury and that he was at a party at some point during the evening and then he was there later when the police showed up around six after midnight it does not show that it was physically impossible for him to party and he talked about going to a college bar to perhaps go get some women to bring back to the party and that mr fine no made a inappropriate gesture by talking on his belt and saying that he and mr ward had already been with an older woman that about what happened when they took her and how long they spent raping her i am making an assumption based on the evidence in the record ok well then the confession also says that they left her in the building that had been previously burned down and buried her in the floorboards but she was found thirty miles away and shrugged and stabbed she was shot in the head so i'm not sure that we can assume accuracy from the confession but not every detail of the confession needs to be corroborated and that's part of the problem here too is that the court of criminal appeals found that mr fine his confession was corroborated nine different ways i would also know that the medical examiner testified at trial that due to the state of the bouts he was unable to determine whether or not the end was staff and that in many cases individuals are stabbed and there are no marks on the bones believe that the counsel the time before his release they set up conditions of release and i believe he's under some sort of supervision and perhaps a bond but i do not know where he is right now but i do know he is not in custody is he not in custody just because of the decision of the state or is the is that do you believe that somehow the judge payne's order part of his order was not stayed to the extent that it required him to be out there i mean you know any of the legal explanation of why he is out right now i don't know it well enough to comment i would tell you that based on my reading and from what i know from our office judge james orders the reason that mr fein know was out in the community now after having been but by that is a retrial and ordinarily is i think i remember that his order was you will be the definitive really or this biggest released unless the court there's a condition for the the nd amended the titian be dismissed alternatively i would request that the case be remanded with instructions to allow respondent to respond to the merits of the petition and if this court has concerns about mr irvine those custody status certainly i would encourage it to issue an order relating to that thank you thank you ms murphy you have to jump on me is your microphone address a couple of things that the attorney general's office presented st off first in the opinion of the one hundred and ninety one page opinion in order for it no want him just pain specifically ok so there is no ambiguity here in addition to every motion to dismiss that the director filed also dealt with the merits alone but then he pursued through all defenses that they wanted to raise so the idea that they did not have the opportunity to address the merits is baseless based on the record and specifically the directives of judge pain as he was reviewing support for viewing his  in addition your honor the director talks about the need for so many different petitions and the reason that we needed so many different retention is your honour's is because of the egre misconduct of the director over this thirty five year period of time where my crime was innocent and incarcerated the court found just pain found that over that time period latches maybe gets you over the exhaustion requirement because if you don't get over that you've got a mixed petition and we don't have jurisdiction to hear it but once you get through all your procedural bar and you get through the statute of limitations under ed and you get to the merits we have an apply here based on the actions of the oklahoma quarter criminal appeals in the middle of that direct appeal which you guys talk was miss discussed during the attorney general's presentation the court issued that order  that the government doesn't even at argue that your brady claim is on exhausted they argue that did you're just reiterating a prior brady claims so i don't think you need causing prejudice or anything on your brake claim because it hasn't been raised ron i'm not sure i understand the brady klein was raised on an in state purpose conviction and based on the your honor our position and as i was explaining that you're like under due to the facts of this case no different is required because on direct appeal their court stated clearly that they didn't have everything when they made th concow nsel so if those are on exhausted and if we don't have some way to avoid the the procedural bar caused by non of actual innocence was persuasive enough to get to that issue in a desk in addition to that this is what i think you're confusing i don't think that exhausted or an exhausted gets us to actual innocence exhausted or an exhausted has to do with the respect of the federal court for the state court to give them the st opportunity to protect mr fanta knows constitutional rights and so if it feels to me like you're confusing legal concepts your honor i would say at this point based on this court's ruling of utility the exhaustion because it is because i would be the directors repeated failure to comply with court orders and subpoenas this case takes so more and the fact that this case took extra years and it was required to foll subpoena in addition to that the idea that the director was the hunter proud is refuted again by the record the record shows a district court accommodated se th amendment claim in their last motion they talked about you know issues with the confession and how the district court you know and how it was raised in the nd meditation so those were all raised in and their motions to dismiss this idea that they were somehow prejudiced is is not proven out and is even more creationists when they finally when they were repeatedly don't dispose records in his case records that were assuming for a moment that we agree with you on exhaustion and he agree with you on an actual innocence gate way to get you past the end of statute of limitations and we get to the m presumption of correctness to the factual findings of the state court and you can find that of four of the opinion which is a requirement under in one in addition he also went through all of the claims that talked about did not state that proceed if they acknowledge the fact that they did not have all the facts and ruled anyway there is no statute of limitations in oklahoma for non capital applications for post conviction rel so there is no time issue there as far as when that application could have gotten fought and so in that regard there is no issue as far as when he should have done something as far as that because there was no time limit as far as that application happened which happened in twenty four dollars team so your honor based on all of those reasons the district court found in its opinion that there was grounds for what for actual  present as relation to time and then apply the proper standard for actual innocence under house and its progeny further he did a separate assessment for causing your honor co found snow is innocent he has been in prison for he was in prison for thirty five years for a crime he didn't commit and judge payne found that based on the misconduct over that period of time from the from the state of oklahoma his trial attorneys felt numerous discovery motions that cover all of this information currently mr fantino is out on bond and he's on supervised release based on an order from this court authorizing him to pursue bombs but he is still in limbo your honor it can vote he can't hold a job he can't travel he is still under this sentence and your honor i your honor i am not sure i know that is something that has pain order but i am not sure what part of the state's case but tension remains given over the one thousand pages that refute every aspect of their case that they presented at the time  thank you thank you your honors i missed johnson you have time supposed conviction receiving to raise the substantive rating claim but his cousin presidents was a conflict of interest with those conviction counsel but you didn't challenge exhaustion on the brady claim i believe we did your honor i may be confused but the substantive claim is exhausted as st cause and prejudice to overcome the procedural one time barse it was not  you i would also point out that while there is no statute of limitations or on a state post conviction application there is a statute of limitations for haiti's petition and petitioner that post conviction council of two thousand and three to two thousand and thirteen and then when the innocence project picked up the titian or had it but one hundred and eighty pages of the either documentation from we have an inability to figure out exactly what happened due to the passage of time also petitioner ignores the fact that the alleged wrongdoing was addressed in that sanctions hearing and respondents actions were not found to be attributable to the non disclosure leave the police reports or over the information that was discovered in two thousand and nineteen was simply misplaced merits response so that the correct at the difference can be applied to this case thank you thank you counsel this is a difficult case and we will taken under advisement we appreciate your argument this morning