wasn't available previously until his investigator got involved in this case and the most important element of that is that mr ronnie moore the individual who was with the  the night that mr stone was robbed and murdered has finally come forward and sworn out an affidavit stating to the effect that mr that your parent was with him robbing a car in walton west virginia at the same time that mr stone was being murdered and that in fact the appellant was innocent because he had nothing to do with that but now you think our standard of review is in this case judge of what canada we view in the dish of course of you know that the presumption was not open for it judge i believe that that would be a legal conclusion as a result that to the extent that i was able to find this is not a lot of jurisprudence on this particular statute but what i was able to find is that it's a noble review this car but they said well he could have had time after he stole the car to get out there yes your honor he did in fact testify at is trial and that is at his trial his defense was what we just said that he was you know in malden stealing a car not robbing and killing mr stone but the difference judge is that that was mr that was mr kelly i was the appellant testifying on his own without any corroborating evidence whatsoever that he was there what with this new evidence is that mr moore has come forward at the time he at the time of trial judge evoked he invoked his fifth amendment right not to testify and so his testimony that is now before the court is now out in the open wasn't available at the time and the only reason it's even available now is that in october two thousand and thirteen october two thousand and thirteen mr this or more by i'm sorry mr the appellant by sheer happenstance came into contact with the investigator who won around to west virginia and found and secured the affidavit of mr moore and that is actually an important point because what the court looked at   she came into contact with the appellate after she's been donating her time to inmates to try and reduce their sentences and or you know overturn their convictions for the past seven years now after seven years donor time she happened again sure happenstance to come across an internet posting that the appellant had placed on a website for inmates and she took a look at this case thought it was i want to issue a question about the standard overview what a district judge finds this seems to me that that didn't this didn't fit neatly into de novo to me it seems like we have to review the finding that judgement will judge if if the facts alleged here had been contested for example if down below the government had said well miss become mrs making this up she didn't do any of this these affidavits are bogus or something along those lines and the court found that that was the case so look if this is what if this is what the case is these facts applied to this law not enough and what what i believe terrance says is that the when you do that then that's just that there's no there's no finding of fact that's just a legal conclusion that the court made based on what facts are presented to it by the parties and as a result when it comes back up to this court it's a noble review because it's simply and and simply a legal so you think it changes that is if the court would have to be contested the co could just go your witness said that i don't believe i think that's true as well judge so any time that there's any issue about the finding then that you know that's a much higher standard but to the extent that it's a legal finding then again it's just a do novo review so if the court is making a factual determination even if as in the scenario you describe the court has said you know i just don't record no questions to be asked about that we just look at is that sufficient under the law yes ok i got you now again getting back to the question of whether good cause or manifest injustice has been shown what the court really focused on below was that the appellant didn't provide an explanation for why again he waited until october of two thousand and thirteen from this becomes to come along and start helping him out and i think that a couple points about  now well you know the fugitive was a thrilling movie that the fact is that prisoners are allowed to go out and try and prove their innocence they're in prison now the last time he had counsel appointed for case was on his twenty to fifty five motion that he filed following his conviction that was filed before the i p a even came into existence in fact the last attorney appointed on his case was appointed in august i believe of two thousand and four in the court below say that basically that his delay of a years to follow this motion is unexplained and there is an absence of any explanation as to why that delay occurred in the course a then i think that's what the court said you to and he was in jail right he was afraid to go out and find people to help exactly and i think that in essence what the court has said is it's like it would be analogous to a situation where a farmer files for an insurance claim because he's lost his crop and the insurance company denies the claim because he you know he didn't provide an explanation for why he failed to pick his apples before the lightning hit the tree and i think that you're what we have this is just he's he's in jail he's in prison he's limited and that's been the status until he changed his decision and signed an affidavit in may of two thousand and fourteen saying i was with shane cali when he was stealing a car in malden west virginia not robbing and murdering jeffrey stuff and because that information was never available even if even if he'd had this become as before then even if he'd had an attorney before then he was looking at it from an i p a standpoint  none of that was even available to mr calley to use as an argument prior to as as it happened when he did it and so if if you're looking at it from the standpoint of good cause  manifest injustice i mean i think that in this case they're sort of related but the reason that separates mr calley from you know your run of the mill inmate is that it wasn't available and when if you came available he used and i think it's unfair and unjust manifestly so to say that well it wasn't it wasn't available before you didn't use it and now that you're finally using it well it's too late to go back and do that especially when you consider that this statute the purpose of it isn't necessarily to set mr calley free because if this court were to reverse remand back to this report with instructions to allow the d n a testing go forward he doesn't go free he's not free immediately is his conviction is an overturned all that but i think that is extremely compelling but ultimately your honor the question isn't is it definitive the question is just whether the evidence that would come back would create a about or didn't have and i would qualify or manifest injustice or good cause because because your client did test or there was evidence of the alibi so that the witness just to corroborate well if you go past the  in the right circumstance i think you know right circumstances alone in this case i think it would be to all this other stuff that matter to your case why it matters because i mean i don't know it's all about but it doesn't matter helps you but it's not necessary correct what day we can witness court held that it did not overcome the heightened standard they're required to overcome which is to say manifest in justice this court is you're correct your honor that this court is not specifically ruled on the standard of review we believe the standard clearly erroneous in this case judge company were in a nineteen page order individually analyzing the affidavits this is the same judge of course that heard the trial has heard the twenty to fifty five heard the second and has a pretty good handle on this case when defendant says in claims appear in the something i want to get to immediately defendant's motion on the record page twenty is this motion is timely in that defendant's motion is not based solely on his own assertion of innocence and after considering all relevant facts and circumstances surrounding the motion a denial would result in manifest injustice that's page twenty of the index that's it that's all that this defendant offered to judge copenhagen to explain the eight year absence that's the evidence that the court had but but but i want to the same question i asked as i read of course had that delay is unexplained and in the absence court said is factually correct and here's why the defendant's explanation as to the delay right focuses on evidence remember we're here under under a thirty six hundred analysis they're saying there's some d n a test out there they don't say what it is but there some evidence out there that they want to submit and they believe that's going to show reasonable probability they don't have that evidence the whole time for this or it's or this is evidence it's in the record what they want to test is evidence when we filed our response they went through and picked out things that hadn't been admitted this is not biological evidence but they suggested well this may turn up d n a in this day if this d n a does turn up on this evidence that this was that beer can and bl is to say the blood isn't biological evidence i would point out the blood is inconsistent with their theory of the defense in as much as if there was a smear of blood on the exterior of the car we're not sure we're not sure what that shows the eyewitness didn't say that the individuals were hurt or injured it's not consistent with the statement of overton when pauli so the evidence that they proposed test is unspecified but it's the thirty six through the i p a the innocence protection act requires them to identify with specificity the evidence that's going to show that's going to raise reasonable probability and it has to be biological evidence your hands are biological evidence so but going back to your initial question let me let me hold back around there with the judge analyze this this is evidence that they've known about the trial lawyer knew about it from the outset ok so this isn't new evidence what they're claiming is new evidence is actually also not reflected on the record ok and in the court i don't understand all that just explained this to me very clearly yes so they went back to the cold and in the  diddly is the salient fact in considering as the statute requires all relevant fact instruction places then he goes on to say in light of this delay and the absence of any explanation and sounding why it occurred unable to show that bothers me maybe it shouldn't maybe she even explained why it shouldn't but it seems to me there is a delay i'm with him and let but that is unexplained and almost unexplained it's explained because he's in jail and couldn't get to the resources it well that's not even an independence motion it's just says it's not a manifest injustice it's a one clause explanation what i'm asking about the judge's order i'm looking at the facts myself and looking at what the judge wrote this is minute may not make the difference to the outcome but i'm asking you he says unexplained delay is not unexplained is it i thought they explained it because he isn't partly because he's in jail but your honor even if he's in jail he has access to this evidence he has access to the ability and the innocence protection act applies to people in jail you can simply ask that this evidence be tested he's had access to this evidence the whole time and he said counsel the whole time  in contrast to what was initially offered to the court the court has last heard about his counsel this year in march so you think there was an unexpected imprint raghu that lay is his delay in pursuing any remedy under it yeah exactly your honor and that's exactly what the statute requires it's his burden to pursue this the core of the what the history the act requires a new and very narrow focus of in specific steps they have to overcome but this has to be sought by that within a certain time period within within a certain time period and then it shifts so we're not hard hearted here if there is a presumption of timeliness if they act seasonably in the courts words if they don't there's a higher presumption that higher presumption is manifest injustice incidentally is kind of slid in also good cause there but that's not what was what was asserted here there's no good cause a good cause is also listed in the statute the court wound up ruling on both but when the defendant claimed to explain his absence of time at least initially in front of the port he just simply said manifest manifest injustice again in that one narrow clause that's the information the court has to work with now but i know that he was in jail yes that the court know that they have been some time that he'd been in jail before he was able to hook up with the investigative mccomas to the court know that yes the court analyzed each and every affidavit in this case and in the court had not only the response i will just simply say i measured it and why how is that and system with the record on what the judge looked at it's one hundred percent consistent with what the what the defendant filed on page twenty in the appendix saying the motion is timely which was not true in the defendants motion is not based solely on his own assertion of innocence and after considering all relevant facts and circumstances surrounding the motion a denial would result in manifest injustice that is the only explanation offered by defendant when this court had this to consider whether they overcame the high hurdle manifest in justice clear unmistakable requires the opposite conclusion to be reached so when the judge looks at again i don't want to i don't want to try to crawl around and judge  can simply say this sentence paragraph thirteen from their own motion is the only explanation they give they don't even now if you attach to the affidavit you do hear the back story about how they picked up one other thing i'd like to clear up on the record the statement that ronnie moore was not available at trial is correct ronnie moore asserted his fifth amendment but defendant is not telling you that there was a huge hearing at that trial where they tried to introduce a taped statement made to his investigator as possibly rising to eight zero four b three the judge the judge considered this evidence had both sides brief this during the trial to see if his own availability could overcome the high hurdle that this court has set in bumpus not available the statements completely get interest and corroborated so this was actually ruled on so to suggest that well now it's different because now we know what ronnie moore had to say is actually not correct they knew what ronnie moore had to say would have set a trial but for the fact that he pled the fifth when we look at this case you point is although he won one of the testified they knew what he would say if he said if you test that's right and to the extent that that that counsel for defendant at trial tried like the dickens to get that statement in he wanted to play that statement for the jury and rightly so judge copenhagen did a did a very sophisticated balancing test and said this doesn't come in this court consider that on appeal that was the that was the appellate issue that this court denied was denied in two thousand and again that set it up for the twenty to fifty five to thirty five eighty two and then as recently as march of this year so i'm a little incredulous to hear the defendant didn't have counsel when it seems like this case is sort of exhibit a as to the risk of a perfectly good statute a statute that we support that that can if the hoops are identified but  mostly this is assessed of twenty to fifty five couched as a thirty six hundred and that's the danger when we look at these at these affidavits going through the case line by line it's an attempt to retry without any explanation of how the specific evidence which they didn't really get around to claiming they just in again in their original motion they wanted to test everything but the how the specific evidence is going to show a reasonable probability that the defendant didn't commit  but it makes clear that these are recovered in various areas that are consistent with michael stone's description of where these people were coming from when they attacked him when they attacked him and his father and i think that you know what we're what we're trying to determine with this evidence again is it individuals other than mr calley's d n a appeared on these items at the scene of the crime you know when this crime is taking place that yes there could be some other explanation for how mr kelly was there you know brandishing a firearm potentially thinks but the shells in the right have been right and we think that there the sailors were the ones drinking these beer bottles we think that they were the ones wearing these clothes and we think it's their fingerprints so that's that's where we think that there may be d n a evidence found on these items saying i have a cooperated witness isn't going to be enough what i think takes it beyond i thought that's what you tell me only that it would be enough in this case in this case it would be a no no i said no no no i said forget everything else you said i'd like to have it in the case i said is it necessary and you wait nope it's not the script it's not necessary question to you well i think that depending on who the corroborating witness is what the circumstances surrounding it would be that what would alternately determine whether or not that would be enough now in this so insightfully stated the purpose of at the end of the day the purpose of the i p a is a permit collateral view of convictions through d n a testing no matter how much time has transpired or what other deadline