start i just like to recognize how proud the court is to have judge richardson on the sat in bank case the last term of course but i believe today might be the first time on think i may please the lord i represent the appellate sworn cohen in the state of south carolina i am here before you today because the district court lost its way the order is flawed for three reasons first the order grants relief on a matter that has in south carolina with narrow exception an individual seeking relief under p c r application is effectively great at one chance to argue for relief our state law says that any ground finally adjudicated in any proceeding the applicant has taken to secure relief may not be the basis for subsequent application here the supreme court of south carolina did fashion a new legal standard of review for newly discovered evidence in p c r claims following a guilty plea however the supreme court actually i don't know if it matters that much i mean everybody makes a big deal about a been knew but it seemed to me the court basically rejected the five factor  one standard switch to the next it's it's where the court had not addressed it so they have try to figure out what's appropriate legal to do sir that's correct and of course down in the weeds you realize that factor test doesn't really make any sense when applied to a guilty plea it just doesn't make sense so we our own directive review of his p c r peel so the supreme court south carolina made findings the evidence was insufficient for support relief as a matter of law the lower state circuit court hearing this p a third time cannot overrule the state supreme court has already made findings can you back up for me just a second because we don't need to get to all of that if there's if this is not under really can you make your argument on that absolutely mr jamieson claims of due process and equal protection violation because the south carolina supreme court did not remain and his p c r action back to the circuit court for review under the new interest of justice standard announced in the opinion however he's merely layered a nonspecific constitutional claim over what is clearly only a state court matter jameson takes issue with the judicial  supreme court in addressing the newly discovered evidence claim in the collateral action this is not a denial of collateral process it's a denial of collateral relief that does not equate with the due process violation of state supreme court says that federal habeas relief cannot lie in areas of state law the federal role in reviewing an application for his corpus is limited to evaluating what occurred in the state or federal proceeding that led to the petitioners conviction what occurred in the lateral proceeding does not enter into the hague is calculation this circuit has long held that alleged infirmities in a state commission action are not matters that may be addressed in federal federal habeas corpus actions and so even if we were to accept his argument of air as true and we certainly do not state law an air of state law all on a state collateral matter is not a denial of due process otherwise every erroneous decision by a state court and state law would come to the court as a federal constitutional question in other words jamieson lost in his collateral action he can't just say it isn't fair and then all of the sudden as a constitutional due process provides a b s relief with respect to detention and aspects of the state courts ruling holding them in detention and your argument is that while this is not a detention matter of course raised other grounds that were did not really from the district court that would put it squarely within the hideous action and maybe this you could argue this was piggybacked onto it for jurisdictional but but now we don't think it has any place here so sure we could argue decisions and then furthermore we've got the remedy problem which doesn't make a lot of sense in this case to be entitled to relief under twenty two fifty forty one this court must ask does a prior decision of the supreme court the united states supreme court clearly require a higher state court to remand the case packed with circuit court to make a judicial determination after just covered evidence in a collateral matter and if the answer is no then the state court decision is a title to de similarly there is no binding united states supreme court precedent that titles a petition or to a right to any particular any particular newly discovered evidence standard of review after a free involuntary guilty plea was entered instead the case have known it was a part but when you're challenging what happened in a peculiar occurrence to which the defendant was a party and saw it all and he get somebody else to cooperate one thing or another seems to me his guilty plea everything that he knew it all and he knows what he's pleading guilty to and why he shot what was there the fact that he gets another person to help him out on defense  and again they did review the testimony in their view the testimony in the really i think in the light most favorable to mr jamieson by assuming that bellamy's testimony was accurate assuming that it was credible and they just found that this was not going to satisfy the interest of justice  again that's the problem with for me handing it back to the stake was circuit court have a third p c r hearing to decide whether or not the state supreme court was correct in their application of the standard or review to these particular this particular circumstance it's opening up a can of worms that just doesn't need to be opened up the state law governor we have state law that governs the newly discovered evidence when there's a challenge to a guilty plea and that's exactly what happened in this case it followed the even a right to demand the state court remand a case to a lower state court for findings the south carolina supreme court's opinion cannot be said to be contrary to that clearly established federal law in sports twenty two fifty forty one so this doesn't survive choice you fifty forty one the district court's order i'm here before you today to ask this court to respect our state courts findings on our own state law the district court granted a remedy that fully in conflict with the principles of comedy by not only pitting the federal court against the state court but also by putting a lower state court against our higher state court we would simply ask this court to prevent the state that there is no federal remedy for mere errors in a state collateral process however that is not what mr jamieson is arguing or get either in this record or argument here the issue is that he was never afforded any promises on the critical issue as to whether or not he meets the interest of justice standard and just newmar whether or not it's a new standard or the gap filler on this issue doesn't quite matter even if even it it is under south carolina's own procedures he was not permitted to argue that thing in his brain because the search was granted on two issues and two issues only a with his position was timely and b whether any remedy is available following a guilty plea what about the fact that he pled guilty and it was a knowing voluntary plea you know you don't disagree that it was a plea it is the state of the record you know very well united states versus jameson i think the outcome would be quite different because supreme courts the federal supreme court has held that once there's no one involved to plead essentially waits all all defenses apparently in south you have to take a position on what this court's order does so if we in a one sentence order affirmed this order to the extent that we can figure out what it is what happens in the state court model that so if you were you wanted that to happen and you sort of recognize i think that what the district court did here at least on its face is impermissible but if you were going to modify it how would you because what the judge has decided below is that the supreme court can't decide this issue right so if you modify it that way then the orders internally inconsistent because it says the supreme court can't decide this issue but i'm sending it back and directing that the five justices of the supreme court that they do something i'm not sure what they would do them because they've been told the federal judge they can't decide but now they've been told by the same federal judge that they should  theoretically plausible but if you were going to modify help me understand which i think is the internal inconsistency here of how possibly a district court could do what happened here so i don't think it's incorrect  court that all that needs to happen and by the way he may ultimately lose on the merits but all that needs to happen is that he should be given an opportunity now that he knows what the standard is not he knows the issues before the south carolina supreme court as opposed to the issues  so to go back to my question your modification would change the district court's order to say i am vacating the state supreme court's determination that he cannot meet this standard and i am sinning it back and i'm directing five justices of the great state of south carolina that they must order briefing and permit argument on and the standard that they determine cannot possibly be met under the circumstances that are set forth here i think the determination to suck on supreme court has made was i don't know if we can possibly be met or not because they would not have the opportunity where they said they said it cannot possibly under these circumstances but what the fact that they news like a motion to dismiss right like the spring court looks at the facts here and says it cannot possibly be  there was no gun scene and so we're sitting there relive again all this and he was there and he says i'm pleading guilty to this manslaughter charge and basically we're saying he should i don't know what the standards are opening guilty pleas are any more if we are allowed every time some i plead guilty to then go and regurgitate the facts under which he pled guilty the court there when he takes voluntary plea only to find sufficient facts to justify conviction and this would if we get through all those procedural slayers who would be good in telling south carolina to get involved in a very strange world and i well will open it up with a subject stachel justice but in this case we don't need to open up we didn't get there now the question is what are we going to what are we telling south carolina they have to do we have told they have to do something different from federal law given an opportunity to be heard on that standard again even that standard was arrived at without any input from mr james but but even that aside i want to see what has been set he should be given up looking to argue whether or not he needs as opposed to coming to an essentially ex party let me ask this question to the troops changing the scenario and this is obviously a hypothetical if the fourth circuit were to address a question and in my that hasn't been decided is this question right that the same state of south carolina decided and we say you know the government wants to say no you certain area oh do we ever open up a guilty plea just like the government argued from the state supreme court and you know the defendant says you should always open up a guilty plea on tuesdays at least and so the fourth circuit said we're not going to say never but we're going to say as basically supreme court in south almost never and but that's new because the fourth circuit hasn't done this before and yet the fourth circuit looks at the facts in this case and says you know wherever the line is this is not close enough there is no chance that the record could support a finding that this is that extraordinary case and so we're going to reject the claim without remaining for argument or further factual development would that be a politician of the due process clause for us or to do that to sort of make that determination as a court that we don't have to remain in this for further factual findings because we have here because on that i have been set the hypothetical though the answer is that is not a process due process this may not be a due process problem because if it's not it's never meant wherever the line is and as well as it's an issue of  got there is no possibility that this defendant petitioner could ever meet that standard and so we reject it out remained i mean that that seems to happen right and so of grand and so in those circumstances when there is no opportunity to argue either the standard or without the standard is met then the ultimate outcome on that issue does not deserve deference under at par and i think that i should bring me perhaps my final point on the principles of comedy i think state has exactly backwards the district court showed extraordinary deference to south carolina state courts because if their decision is not does not has not earned that productions that means that the federal courts could have fashioned an entire remedy on its own instead of doing that demonstrate seems to me of his allegations fall short of the line necessary to stop it get thrown out as a matter of law and that's really what the supreme court of south carolina did they said that in this case based on this record there's no chance that he can satisfy the scape hatch we put in there and they're force a matter of law and i take your point what happened here is just the opposite the your client obtained an affidavit which he believed would entitle him to i don't know what draws guilty pleas up the argument that is the argument present what he had to the court and the court basically said that's not enough so he had his opportunity to make that presentation in the supreme court basically said that's not enough to open a guilty plea while on a special disagree i think the thank you your honor very briefly we respectfully disagree with mr genesis position that they didn't have the opportunity to present this argument when from the get go of these proceedings it was very clear that the state's position was that following a guilty plea the five factor test would not apply because there is no trial so you can't that was the state's position from the very beginning the p c r judge even in his order of dismissal express concern i think is the way to put it that there was no state law governing the five after discovered evidence following a guilty plea so certainly everyone was on notice that this was going to be the issue even as the p c r court wanted some guidance for from the state supreme court so it sort of set it up nicely for the state supreme court to come in and clarify the law in this regard so suppose his argument is unless it's absolute if there is an you know when we challenge the state courts will and as well so he what he did have an opportunity to be heard both before the state court ruled and then after the state court and it did not the petition for rehearing and rejected that argument so there was no there was a lack of notice there altogether judge richardson you talk about how would you modify this district court's order and i think once you get into that the details of that you realize what a mess this is because what happens when it goes back to the state circuit court for p c r period what happens when he files in the state immediately files a return a motion to dismiss has relief been granted because he was allowed to present his application and it was docketed this argument says it should go back to the state supreme court and he says now the supreme court well ok so we still do overturned  just it's just much easier well it's not a matter of being easy it's appropriate to reverse the district court and not subject our resources to this and not open up this can't worms thank you very much mr owen i want to recognize your your court appointed and as you know this is a very important service we want to recognize as you did a fine job we welcome don agree counsel and proceed on to the next case