all of that i was wondering if the court had any specific concerns or questions that would like me to get to right away so there will be time to at least address that we have in the supreme court authority as to what happens if you have expert testimony that's no lie i mean we all know what happens if you have with this is a time to lie and so on but this is somebody who truthfully testifies and for two reasons one is that some merits consideration with her on a motion to dismiss so some point i'm going to have to answer that question directly but that's after which he cited in the reply brief which indicates that you don't always need is holding if you have general principles that you applied to a case a new factual situation so i'm not sure the extent to which the absence a square holding would be nice really if we were before you on the merits of the false evidence issue council there was a case about three weeks ago from the supreme court marilyn vs cool vicki it was ok case someone was convicted on ballistics evidence which is later been pretty much uniformly rejected that the lead analysis done by the f b i has been proven to be bad in courts of now said the it's bad and the maryland court of appeals in that case held that there should be pretty much automatic stricklin reversal here because the lawyer should have argued that the lead evidence was bad going to should have anticipated it should've figured it out and s supreme court this is probably why you haven't heard about it was a summary versal and said no we can't put the lawyer as a car knack type figure now i would agree that addresses some of the issues in this case the question of whether the lawyer was strickland deficient and it may not directly address the key argument in this case but if that's the case from the supreme court two and a half weeks ago it does seem to shed the question is whether or not this sort of back to back question is what i guess one of them is is this do you have evidence showing in fact the science principles of the government says that there is a battle of the experts that there is dispute but there's nothing that says we used to think these these worst were signs of shaken baby syndrome and now we know they're so there's nothing like that and i didn't see anything in the record either so when you say that the science has been overturned i'm not sure what exactly you're referring to well there are things that say that they do say wasn't dispositive no i mean there's a dispute in general terms it's between pediatricians on one side who say this is still good and forensic pathologist on the other side which says in the context and you have a brain swelling so that's all you have that you have no physical injury no neck injury no head injury and the dispute is is that are those three symptoms sufficient for a diagnosis of triad of shaken baby syndrome and sufficient so a conclusion c is out we're really looking at using the science is chanced on or that there's a dispute about now yes yes that and you say the weight of the evidence is that it's not sufficient though it's the government says there's still dispute on that it's sort of like it's comparable to the scientific dispute on climate change if you will the overwhelming majority of pathologists the one who must  ones who must make a determination of is this the cause of death say this is bogus currently they said in one thousand nine hundred two in this case was originally tried they didn't say that but over the course of time it's become clearer and clearer and clearer that that is not the case and the scientific basis for such just like my opinion but the scientific basis for it is biomechanical research and those articles i cite in reply was a sort of try to highlight that  that the weight of the scientific evidence is it's not sufficient the government also argues that at a minimum it's evidence that changes of shaken baby think of that that was the cause of death do you disagree with that based on the current science i disagree with that there's just no reputable pathologist who would say that anymore i mean that's our point it's gone so far that there's no reputable pathologist who would say that that that those three some things you describe are evidence sufficient we're talking i'm not saying sufficient i'm saying would they be evidence along with other evidence i mean evidence is that you can get in anything you want i suppose but there i think that that it would not be i mean evidence yes very weak evidence so i guess that that's the best way to say  we haven't had a hearing on this so how do we know the only way that you're right there hasn't been a hearing but the only way that we know is by reviewing the literature that talks about the subject in the case law that applies that question that we're going to have to grapple grapple with what's say the district court here had held the kind of hearing i'm talking about scientific consensus has shifted so that all but the wrong or crazy scientists  constitutional consequences are from that i think that that presupposes that the way it was done then was constitutionally fine then yeah now i understand yeah i think that actually so we raised three clusters of issues i think that the one that specifically goes to is the false you know unwittingly false evidence under this court's cases that talked about that's sufficient in order to constitute a due process it's not done wittingly that stand in good faith but it's false that's still denies a fundamentally fair trial and then the jensen case which is from the eastern district says well that's a due process by the source that that theory is that  actually actual innocence i'm a little but i think that the actual innocence claim is a better claim than most people think because of the davis case decided by the united states supreme court in two thousand and eleven which is also cited i think about page thirty two of the opening brief where the court on hey vs center case back to the district court judge to make a determination of whether the defendant is actually innocent that's a holding that's the holding in that case for of course not and it's not in bull type with exclamation points but that's what it said and the only the you conclude from that is that if the judge and this is the district court southern district of georgia if it had found actual innocence it would have granted relief but found that the guy wasn't actually i but if you're going to have him actual innocence claim here we unclear we the actual innocence kinds or there are about seven or eight of and they're like that's one of the that's the key but there are several others as well concerning other things that were other medical stuff that was used to pathologists and two neuropathologist that the likely cause of death was a brain bleed from birth that worsened over time and made to a stroke on the forty eight forty nine states that means that this there was no crime if not someone else did it it's that that the subsequent leak seems to have i got in front on this issue yeah me is actually very close i mean not precisely this point but in principle it's exactly what this is new scientific or expert evidence if you will that completely refutes the evidence on which the conviction is based and that being the due process by which is actually the third circuit is supports me directly at least petitions it wasn't it wasn't dealt with this is typically the case in the state court so there's there wasn't simply a summary denial there was instead the issuance of an order to show cause and the response by the by the district attorney's office and extensive response that addressed many of the factual claims that were made by mr humanist and a couple of those i'd point simply to a couple things that i think completely well i think  pathologist was not able to give a statement because he's passed away but one of his successors in the san diego medical office started christina stanley did review his testimony in this report and she said i adopt and she is a forensic pathologist mr schroeder says that there are only pediatricians that disagree with his with his clients of the science or she is a forensic pathologist and she said i adopt everything that dr sally said that is this is a homicide case the evidence in this case shows homicide now also before the state court from dr stanley was some new evidence provided to that state court with regard to his claims of actual the brains in the significance of that is this the theory of abuse of head trauma or shaken baby syndrome is that injury to the head that comes from a collision or from shaking  accidental sharing that leads to inflammation that event eventually shuts down blood for blood flow and leads to death so now what dr stanley says is not only do i agree with everything that dr but now i see the actual i see direct evidence of injury that is not a passive bleeding problem that existed from birth until death but i see evidence of injury accidental shar the district court i think did a terrific well the district court did a terrific job in the type of examination of the scientific evidence that you were describing magistrate judge barbara major in a very extensive report and recommendation said that i don't see this evidence i see some conflict and so and some of their evidence is not particularly good that is for example they talk about error or their theory is that this child had a birth injury that progressed over the period of six weeks that resulted in her death but the magistrate judge may just as i look at this evidence and no one even dates any bleeding to more than about three weeks before the death and in fact it was consistent i think with the prosecution's theory that the shaking occurred on at least three different three different instances  presentation at the emergency room on august seventh and then a massive injury that occurs at about the time of august tenth which is the final sort of injuries for the child  evidence or i see another single bit of testimony by any of the prosecution's experts that is false and i mean i think that's the sort of typical fact finding done by district court to assess whether there was false evidence or not and she has no false evidence in this case there is there are some experts who disagree with some of what they said that dr alexander who testified for the for the some controversy about whether the child had the typically associated injury of a broken rib because shaking a child hard enough to cause head trauma often involves squeezing the child around the chest and breaking a rib and mr jimenez as evidence is that there may have been something unusual in the rebellion and actually taken shortly after birth but no one other than dr sally looked at the rib itself microscopically and he dated that rib fracture identified a rip fracture and dated it as several weeks after birth so this is not really a case of actual innocence either they they have not and i would suspect cannot show actual innocence even if it were a legal theory a proper legal theory and i think it may be at some point if it's not evidence that comes from the new and different experts that the district court i think the district court in adopting magistrate judge major's report recommendation made in my estimation two mistakes the first one the one the one i wish they'd solve was we also moved to dismiss this petition as on timely magistrate judge major agreed that if you look at the latest possible date that seems to be present for the development of new information by mr happiness than the one year statute of limitations still has expired before he files his federal habeas corpus petition the other error i think the  and judge burnside at started some cases that looked not at the standard to be applied by the district court in evaluating a motion to dismiss but instead looked at the standard of to be applied by questions thank you because of course been generous with his science i'll just make two brief points the citation to the stuff that was introduced by experts in the superior court way back when is not part of the record in this case because we are appealing dems from the court of appeals ruling not this period court's ruling and in the court of appeal the prosecutor did not lodge those exhibits those declaration that's not properly before the court now they put him in their exercise record because in the exercise i reckon you put whatever you want i guess but that was not part of the basis of the ruling that's under review in this court so i just point that out the stuff about evidence of innocence i just want to emphasize we have two pathologists into neuro pathologists who say this baby died from a cause other than shaking it that's not evidence of innocence