honor show obama they have northwestern parts or school of law bloom legal clinic on behalf of cedric cal with the court's permission i'd like to reserve two minutes for a robot all this just keep an eye on your time i will thank you your honors may please the court this is an extraordinary case on its facts and on the law and its facts said your cow was wrongfully convicted as a teenager more than twenty five years ago on the finnish shred of evidence generated by a single eye witness the victim of the crime who by his own admission testified falsely out of fear of his life and to protect his family and he ultimately remained steadfast to his new identification testimony at great penalty it to himself and on the law mr cowles case is the exception that is the rule the united states supreme court as well as this court have repeatedly held open the possibility that a claim of actual innocence under an extraordinary set of circumstances could warrant federal the although the supreme court i agree with you has continued to keep the door open a crack for this kind of case the closest it's ever come to recognizing such a thing is in detroit davis litigation where there is a hearing and given the fact you will outcome of hearing nothing more happened and mr davis was executed so we would certainly be breaking new ground here i think that's correct your honor and it is true i think i think that analysis is exactly right that the court has left the store open that this court has left the store open and it has you know it has a tainted i  lot one can say and has been said by very reputable scientific groups about eyewitness testimony but the criminal justice system has relied on it for centuries literally and if we credit the initial eyewitness accounts as opposed to the recanted account then there is sufficient evidence i think that's right your honor that certainly the state courts have relied on eyewitness testimony even coming forth and saying that a single eyewitness might be enough in cases we would submit this is an unusual case for honors there was no physical evidence there was no kirkland had failed to show by clear and convincing evidence that the recantation was true your honor admittedly another panel of this court made that finding but that argument on appeal was centered around the due process claim although and yes in the opinion there is some reference to actual innocence here we are we we have no escape your honor we are taking this issue head on this is actual innocence this is the extraordinary case and we are mindful of the wildly different we have to disagree with the other panel to reach that decision i think that might be the case but except that the focus in that case your honor again was on the jew process claim and that is not the claim we are raising here on appeal your honor we are we are steadfast in the actual innocence of my claiming actual innocence you're saying it would it all relies on johnson's recantation and given that you're still talking about the merits or the believability of his recantation which was addressed to kirkman that's correct your honor we are not and cannot run from that reality this is a single eyewitness case the case begins and ends with louis johnson and there is nothing in either for our client to demonstrate his innocence or for him to have been convicted in the st place i think that's one hundred percent correct and and we have to embrace that reality and you're not declaring the or or suggesting even that the state back at the time of the trial knew that johnson was from your standpoint giving false testimony or you know not at all we don't we have no brady claim or any claims  perfect trial where nobody violates brady nobody violates you know anything and yet because of the limitations of human decision making i suppose and actually innocent individual is convicted and the justices have debated that i mean you can count noses and fine majorities who have said it would none the less at least in a capital case it would be a violation of our most fundamental principles of justice to execute somebody who we know to be actually innocent even though there was no preach procedural glitch you don't fortunately have a capital case in front of you but you have a very long sentence by an so you're extending waning one really nitpicky procedural thing you are making your claim under the twenty to fifty four d two branch right that's so i take it that your understanding is that is in a sense stand alone and your argument is that this contrary to or unreasonable application of language o doesn't apply to d two cases that's correct your honor we take each you as being a separate standard and combining that with herrera and the applicable standards of course the deference that is in the statute as well that's according to the afforded to the to the state court but stand alone because it's just an reasonable determination of the facts confining oneself to the state court proceeding of course those that's due yes yes your honor it is it is our contention that certainly it is the state court that trial it was a different judge so there isn't a side by side comparison in terms of credibility to be sort of afforded to the judge in that circumstance that being said he did have this new testimony before him and it's our contention that the testimony on the most salient point which is dead sad was sitter cal the person who actually shot and killed the coach said her care and family walker and actually harmed this victim and the answer to that yes that's right you're honoring our contention is that that decision is is that correct given the rocker and perhaps there's an issue around the focus on the facts that we're walking into perhaps a little more head on than they have evaluation of johnson credibility at the hearing the judge who heard his recantation testimony didn't believe that it was true he listed a number of factors then on appellate review of that determination and found that that was not manifestly around and cited the same factors and reviewing those determinations found that those were reasonable determination of fact and  the legal presumptions operate as they do and in the face of uncertainty we defer to the state courts even without the extra language of the one corpus in general has always been a very deferential but it's not actually possible that one thing that's very troubling about this is that people who are as it were lucky enough to have their convictions based on d n a evidence are based on  whatever any kind of physical evidence have a much better chance of showing actual innocence than people whose convictions are based on the least reliable of testimony that is from  that the petitioner comes forward with have to be new and especially reliable evidence d n a evidence would most clearly meet that standard has noted that there are other types of cases where that would be true and which version was false the fact that there are the two play opposed versions proves that there was perjury at one of the two proceedings he plead guilty in that case clearly he he really had no and my point was just that he it was over when at the time he provided the recantation testimony coming forward would have had no benefit to himself in that proceeding it wouldn't have been a defense to the charge but that doesn't stop defendants from adding things that that wouldn't that doesn't actually stop it so i was wondering and didn't see anything in the record as to whether or not mr johnson is now or subsequent to that recantation recanting the recantation or or backing away from it in any way and you know there is nothing in the record showing that he had intended to take that weekend this o'connell can you can you react to this one of the one of the things in preparing for this that i found the language that was used and i thought to myself when i read it while we must have some real whoppers come in here and instead what you get are things like well there was no phone at the in the hospital room in other words it seems like small stuff and how how how it how is that materially inconsistent or materially implausible i mean there's been a lot of time pass there was contradictory testimony from kitchener's own witness that undercut his claim that what had happened was that he was essentially presented with a scenario in which police ask him to confirm whether it was just an hour and what he was lying were you talking about the girlfriend exactly so this sequence of events his claim johnson's line is that he presented with the story that had been offered by the girl friend that she had initially named these two parties and he went along with lately contradictory testimony at the evidence you're hearing saying no it didn't come from me johnson is the one that fooled me initially that you and you know edition or i don't think i need but that is where the perpetrators so that was a fundamental inconsistency and it was a crucial issue as to how this allegedly false identification him about wanted to identify these two other individuals so that we would not come after him in the future this was another inconsistency that really went to the central question of this i don't really inconsistent though it's o'connel y it was your fault to begin i think he would not be talking about taking out revenge on the person that he feared why do you think that i mean i read that as he was keeping his options open and the last thing you want the police to be involved in it so he was what he prosecution incarceration for i think it was some period of three years he never backed away from that this prosecution was so boring in fact that leading lights of the legal community community  prosecutors and judges were appalled by it and that's a feature certainly of the statute but it is credit to destroy johnson that he did not back down for that info and what he did in this case was not merely provide a recantation yes there is skepticism in illinois law and across the country on recantations he provided affirmative exonerating evidence on the one thing that matter who killed his friends and who shot him on that point he was unassailable he did not change that testimony and to the extent there were any and consistencies they were minor they were explicit he had very motivations for why he had to come forward why it was safer for him to come forward and why he could not do so then so your honor we would ask