[00:00:01] Speaker 02: Case number 11-5268, George Leon Adams' appellant versus Scott A. Middlebrooks. [00:00:07] Speaker 02: Mr. Axum for the appellant, Mr. Apperson for the appellee. [00:00:11] Speaker 02: Good morning, Mr. Axum. [00:00:12] Speaker 05: Good morning. [00:00:13] Speaker 05: May it please the court, counsel? [00:00:15] Speaker 05: I'd like to reserve Tony Axum representing an appellant, George Adams, and I'd like to reserve three minutes for rebuttal. [00:00:23] Speaker 05: The appellant, George Adams, requests remand for the district court to decide in the first instance. [00:00:29] Speaker 05: whether his actual innocence claim serves as an exception to the statute of limitations under 2254. [00:00:37] Speaker 02: Can I ask you where before the response to the order to show cause you raised actual innocence? [00:00:46] Speaker 05: I did not raise actual innocence before the response to the order to show cause. [00:00:53] Speaker 02: Don't we have a timeliness problem there as well? [00:01:01] Speaker 05: I'm not sure that I have a time limit on this problem. [00:01:04] Speaker 05: I'm unaware of one. [00:01:05] Speaker 05: As the court is aware, the court granted. [00:01:08] Speaker 02: Well, I mean, you've known about the actual innocence argument or defense before the order to show cause. [00:01:18] Speaker 05: As a defense to the statute of limitations. [00:01:22] Speaker 05: And it is correct that I miscalculated the time period within which Mr. Adams could proceed. [00:01:31] Speaker 05: under 2244. [00:01:37] Speaker 05: I'm just unaware of why the court should not consider, certainly, where actual innocence here is strong. [00:01:50] Speaker 05: That is an exception to 2244. [00:01:54] Speaker 05: As the court is aware, it granted a COA on very limited grounds. [00:01:58] Speaker 05: The actual innocence [00:01:59] Speaker 05: claim was raised as a standalone claim and the district court dismissed that and it is my error for not focusing on something that was dismissed that was not part of the original COA. [00:02:12] Speaker 05: I tried to focus on what the court asked me to address. [00:02:19] Speaker 05: And timing was never an issue until the government raised it and intervening decision of Hedvey Wilson. [00:02:28] Speaker 05: I'd also note that McQuiggins was an intervening decision after the district court ruled in this case without addressing specifically whether actual innocence was an exception to the statute of limitations. [00:02:48] Speaker 05: So it's not something that the district court ever reached. [00:02:52] Speaker 02: But if we hadn't issued the order to show cause, you would not have been arguing what you're arguing on actual innocence, right? [00:03:00] Speaker 05: That's correct. [00:03:03] Speaker 05: I imagine [00:03:11] Speaker 05: There's always the possibility that I would have asked for supplemental briefing or asked the court to delay or argument if it's something that I had noticed. [00:03:21] Speaker 05: And it's not something that I ignored. [00:03:25] Speaker 05: or I ignored it only insofar as it went to the standalone actual innocence claim. [00:03:31] Speaker 05: And again, that's an error on my part, but it's squarely before the court now, and the district court did not properly consider the exception. [00:03:43] Speaker 05: I think that the court should remand just as in McQuiggins for the district court to decide it in the first instance. [00:03:51] Speaker 01: Can you take us through your [00:03:53] Speaker 01: Your view of the actual innocence claim, regardless of whether it's a gateway claim or a flat-out remedial claim? [00:04:07] Speaker 05: Mr. Adams in his 2254 petition submitted three affidavits from witnesses, a fourth affidavit from himself, as well as his original statement to the police. [00:04:19] Speaker 05: And I'd say first, the original statement to the police is compelling because the day he's arrested in 1995, he tells the police, [00:04:28] Speaker 05: I was in another part of town, and I was with all of these people before he's even aware of the full scope of why he's arrested. [00:04:38] Speaker 05: And some of those people, he gives a list of over 15 people. [00:04:43] Speaker 05: So this is not an 11th hour claim by Mr. Adams that he had alibi. [00:04:48] Speaker 05: It's correct. [00:04:49] Speaker 05: Proceeding pro se, through much of his post-conviction proceedings, and certainly in federal court, [00:04:57] Speaker 05: He did not always have the language of alibi. [00:04:59] Speaker 05: But he referred to exculpatory witnesses, witnesses who were in court very early in his pleadings, witnesses who were in court whose attorney refused to call. [00:05:11] Speaker 05: And we learn later through one of the affidavits he submitted of Miss Wilson that she was in court and the attorney did not call her. [00:05:22] Speaker 05: Each of the three affidavits, Wilson, Owens, and Clark, placed Mr. Adams at a location, at the location that he said he was at in his original statement to the police the day he was arrested, that is on the other side of town, it's in Northeast. [00:05:44] Speaker 05: It's in Southeast. [00:05:45] Speaker 05: The crime took place in Northeast. [00:05:47] Speaker 01: And... Although the district court somewhat overstated the problem, there is some vagueness in the affidavits about the timing of events. [00:05:59] Speaker 01: And they never say, even the strongest one goes from eight to 1030, doesn't say that Adams was continuously with them in that time zone. [00:06:14] Speaker 05: It's correct, they don't emphasize that he was continuously with them, but the statement that I was at this location from 8 to 10 with Mr. Adams suggests just that, that they are at that location during those hours with him. [00:06:40] Speaker 05: If there's a question about that, that's precisely the type of question that the district court should decide. [00:06:48] Speaker 05: I believe the language the district court used was that none of the affidavits stated that they were with Mr. Adams for an extended period of time. [00:07:01] Speaker 05: It really doesn't matter whether it's an extended period of time. [00:07:04] Speaker 05: The crime took place between 9 and 943. [00:07:07] Speaker 05: We know that the police arrived and began investigating. [00:07:10] Speaker 03: So the witnesses say that... I thought the point in part the district court was focusing on was 20 minutes apart. [00:07:17] Speaker 03: The two sites were 20 minutes apart. [00:07:26] Speaker 03: I mean, in other words, you're arguing, as I take it now, that there was clear error by the district court in its findings of fact in looking at the affidavits, some of which he said was not new evidence. [00:07:40] Speaker 03: But there was one affidavit she acknowledged was new. [00:07:44] Speaker 05: Yes. [00:07:47] Speaker 05: And well, the district court doesn't say anything about Mr. Adams' affidavit, and he says he was at that location from 8 to 12. [00:07:56] Speaker 05: I understand that there's always... 8 to 10, I thought. [00:08:00] Speaker 03: I believe that... The police got the call at 9 43 or 44 about the murder. [00:08:11] Speaker 05: Or the police were at the scene investigating at 9 43. [00:08:15] Speaker 05: So they had, by that time, arrived at the scene of the crime. [00:08:21] Speaker 05: So the witnesses testified that they went into the woods at approximately 9 o'clock. [00:08:29] Speaker 03: So what I'm trying to understand is you're presenting this as an impossibility scenario, correct? [00:08:38] Speaker 03: That if he's in one place at one time, he can't be in another place at another time. [00:08:43] Speaker 05: That is correct. [00:08:45] Speaker 03: And his defense attorney spoke to some of these alibi witnesses. [00:08:53] Speaker 03: Either one came to him, and he talked to another, and another was in court. [00:08:58] Speaker 03: The case was appealed to the DC Court of Appeals. [00:09:07] Speaker 03: This ineffective assistance of counsel issue raised, correct? [00:09:12] Speaker 05: Ineffective assistance of counsel was raised, but not this precise issue that counsel. [00:09:19] Speaker 03: Well, I thought it was failure to call these alibi witnesses. [00:09:22] Speaker 03: That wasn't raised? [00:09:24] Speaker 05: At some point that was raised by Mr. Adams' pro se in the district. [00:09:29] Speaker 03: Before the D.C. [00:09:30] Speaker 03: Court of Appeals? [00:09:31] Speaker 05: Yes. [00:09:32] Speaker 03: So it was raised? [00:09:33] Speaker 05: Yes. [00:09:35] Speaker 03: All right, and that court affirmed. [00:09:40] Speaker 03: In other words, I see this case as you're presenting it to us, is McQueen comes, and even though the district court looked at this case from McCleskey versus Zant, we ought to look at it in terms of McQueen and decide that this is an impossibility situation and everybody else missed this. [00:10:04] Speaker 03: And we ought to send it back to the district court. [00:10:06] Speaker 03: And you may be right, but you understand it's a very difficult road to... I do understand that. [00:10:16] Speaker 03: I think it's a very important... And so McQueen says you really have a very heavy burden because the court goes at length to say that this is going to be a rare situation. [00:10:28] Speaker 05: I agree. [00:10:30] Speaker 05: It is a rare situation, and I think you have a rare situation here. [00:10:35] Speaker 03: No, but in other words, if you and I were together, and you had sworn out an affidavit saying we were together from 8 to 10, and there was some way to verify that as opposed to we're just wandering around the street and we're in the same area, generally speaking, but you and I weren't arm to arm for two hours. [00:11:00] Speaker 03: Do you have to plug up holes like that to meet the burden under McQuigan? [00:11:10] Speaker 05: I would say that you should plug up holes like that to meet the burden under McQuiggin. [00:11:15] Speaker 05: But I'd like the court to remember that each affidavit was prepared by a witness. [00:11:23] Speaker 05: There's no indication that there was aid of counsel. [00:11:27] Speaker 03: But you're stuck with the case you have. [00:11:29] Speaker 03: I mean, are you going to call these witnesses now and have them testify on remand? [00:11:37] Speaker 05: I don't think that McQuiggins would foreclose that. [00:11:42] Speaker 05: I don't think McQuiggins would foreclose the district court looking at it. [00:11:45] Speaker 03: Do we need to be clear that you have access to these witnesses? [00:11:48] Speaker 03: I mean, do you have to make some proffer? [00:11:51] Speaker 05: I don't think McQuiggins requires me to make a proffer. [00:11:55] Speaker 03: How do we determine that this is one of those rare cases that a district court might find, even though previously it had not found, [00:12:07] Speaker 05: Well, I think the district court has to decide. [00:12:10] Speaker 05: I don't think the court has to decide that the district court might find, even though it previously has not. [00:12:15] Speaker 05: The district court did not decide it under McQuicken's at all. [00:12:18] Speaker 03: But it did under McCleskey versus Zant, all right? [00:12:22] Speaker 03: And was looking at the claim. [00:12:29] Speaker 03: That's all I'm getting at. [00:12:31] Speaker 05: And don't you have? [00:12:32] Speaker 05: Well, the finding of fact that the district court made was that the witnesses were not with Mr. Adams for an extended period of time. [00:12:43] Speaker 05: I understand that that possibility could exist, but there is no evidence in this record that they were not with him. [00:12:49] Speaker 05: In fact, I suggest to the court that the exact opposite inference, when these witnesses are preparing affidavits and saying, I was with him, I know that in colloquial terms, a lay person may not realize that they need to be very specific and hammer down crimes. [00:13:05] Speaker 03: So you're saying the district court's finding was clearly erroneous? [00:13:10] Speaker 05: Well, there's absolutely no support for the fact or for the inference, for the suggestion, for the possibility that Mr. Adams was not with these people. [00:13:21] Speaker 05: I'm submitting to the court that the exact opposite inference is suggested by the witness's affidavit. [00:13:29] Speaker 03: But you have to show that... I'm just trying to understand what our standard of review here is. [00:13:33] Speaker 03: The district court made some findings of fact. [00:13:36] Speaker 05: Yes, well the standard of review is that the new evidence shows it more likely than not that no reasonable juror would have convicted. [00:13:42] Speaker 05: What new evidence? [00:13:43] Speaker 05: The new evidences are the affidavits. [00:13:46] Speaker 03: But the district court found that, what was it, three of them weren't new and one that was new [00:13:53] Speaker 05: Well, the district court did not reference Mr. Adams' affidavit at all. [00:13:56] Speaker 05: There were four affidavits. [00:13:58] Speaker 05: And I submit to the court that that's a problem. [00:14:00] Speaker 05: The district court also did not evaluate any of these affidavits in light of the other evidence in the case. [00:14:06] Speaker 05: And as I laid out in my opening brief, the other evidence in this case is not strong. [00:14:10] Speaker 05: It is strictly identification evidence. [00:14:13] Speaker 05: There is no, and identification evidence is inconsistent of the two witnesses that are right there at the scene of the murder. [00:14:20] Speaker 05: One of them does not pick Mr. Adams out of the photo already. [00:14:25] Speaker 05: One of them picks Mr. Adams out, but both of them, at trial, say that Mr. Adams looks different. [00:14:34] Speaker 05: And they say that he looks different in the exact same ways, different than the person who committed the murder. [00:14:40] Speaker 05: So there is no indication in this record that the district court weighed, even if these affidavits are weak, even if they are not as strong as this court would like to see, even if they don't hammer down, weighed those. [00:14:54] Speaker 05: Looked at all of the evidence in the case, which is what McQuiggins requires, when you combine these affidavits. [00:15:04] Speaker 05: And I strongly encourage the court to include the affidavit of Mr. Adams. [00:15:11] Speaker 05: I think that, again, I know the court is saying that there's a possibility that Mr. Adams left and came back, but his affidavit says, I was at the blacktop from 8 to 12. [00:15:26] Speaker 05: So he doesn't need someone else to actually confirm that he did not leave. [00:15:32] Speaker 05: He's saying that was the location he was at. [00:15:36] Speaker 05: the district court would have to draw from nowhere evidence that he left and came back. [00:15:42] Speaker 05: And that's an improper inference to draw. [00:15:47] Speaker 01: I'd like to ask you about the original briefing on the question of inadequacy of appellate counsel. [00:15:58] Speaker 01: Now, the district court [00:16:01] Speaker 01: found a passage which enumerates three theories and addresses them. [00:16:07] Speaker 01: And as far as I can make out, you don't question the court's treatment of those three. [00:16:16] Speaker 05: Three theories. [00:16:16] Speaker 05: I'm sorry. [00:16:17] Speaker 05: Three theories. [00:16:18] Speaker 01: Well, the passage at page 51, 52 of the Joint Appendix appears to be the source of the [00:16:27] Speaker 01: and inadequacy of appellate counsel arguments that she addressed. [00:16:32] Speaker 01: She did not address the assertion which is tucked away at page 32 of the joint appendix, or 34 perhaps, 34 of the joint appendix, which is really what we're talking about here. [00:16:51] Speaker 01: So I'm wondering whether [00:16:56] Speaker 01: There is not a procedural fault in Adam's papers in raising the appellate, the insufficiency of appellate counsel claim that you are now relying on. [00:17:17] Speaker 01: If you look at 51, 52, you'll see the enumeration of three theories. [00:17:24] Speaker 01: And then if you look at 34, you'll see the sort of straight out alibi claim, which the district court never saw as a [00:17:42] Speaker 01: as an insufficiency of appellate counsel argument. [00:17:47] Speaker 01: I honestly think reasonably. [00:17:49] Speaker 01: So why wasn't that just a procedural issue, which at least in this proceeding, speaking about future litigation in the DC courts or whatever, is preclusive? [00:18:08] Speaker 01: Or in another way, requires affirmance. [00:18:12] Speaker 05: Your Honor, I apologize. [00:18:15] Speaker 05: I have totally lost you. [00:18:18] Speaker 05: If the court is referring to page 34, I don't see three arguments on page 51. [00:18:24] Speaker 01: No, no. [00:18:25] Speaker 01: That's the place where the idea of an alibi defense is [00:18:36] Speaker 01: is best put, although none too good. [00:18:39] Speaker 01: And then there's this sort of enumeration starting on, which actually, I mean, now that I look at them, even the one at 34 is somewhat defective. [00:18:55] Speaker 01: But it doesn't seem to me you've put it this way. [00:19:00] Speaker 01: I think the district court gave the insufficiency of appellate [00:19:05] Speaker 01: advocacy, a very good, I mean, under the circumstances, a thorough treatment. [00:19:19] Speaker 05: Well, the district court said that Mr. Adams didn't raise it, essentially didn't raise it at all. [00:19:28] Speaker 01: Well, the district court does address those three plans. [00:19:37] Speaker 01: Right. [00:19:39] Speaker 01: I don't have the, just a second. [00:19:42] Speaker 05: The three claims on page 51? [00:19:43] Speaker 01: Yeah, 51, 52, goes over to 52. [00:19:47] Speaker 01: It's her treatment, that page. [00:20:07] Speaker 01: I think it's 169 out there. [00:20:15] Speaker 01: No, that's, I'm sorry, 169 is the actual innocence then. [00:20:18] Speaker 01: It's 171 that she takes on the three theories of inadequacy of appellate counsel. [00:20:33] Speaker 02: And is it 163 that has the file? [00:20:38] Speaker 01: It's 51, 52 that has the three enumerated arguments, and then they are addressed by the district court at 171, 172. [00:20:49] Speaker 01: Yes, I see those. [00:20:52] Speaker 01: So in terms of what the district court addressed for inadequacy of appellate counsel, [00:21:03] Speaker 01: and what the papers before her identified as the alleged inadequacy of appellate counsel. [00:21:11] Speaker 01: Why wasn't that perfectly correct? [00:21:20] Speaker 04: Well, it appears that the district court addressed three issues but left the alibi. [00:21:23] Speaker 01: Yeah, but that's the way the petitioner framed it. [00:21:30] Speaker 05: Again, petitioners proceeded pro se. [00:21:33] Speaker 05: No, I understand. [00:21:34] Speaker 05: He's literally construing his pleading. [00:21:36] Speaker 05: The question is whether he raised it at all. [00:21:38] Speaker 05: He certainly raised it. [00:21:40] Speaker 05: The district court did not see it or didn't give it up. [00:21:44] Speaker 01: He raised it, but you're putting a very substantial burden on the district court to figure out what might lie behind a claim. [00:21:57] Speaker 01: I understand we're dealing with a prisoner acting pro se. [00:22:10] Speaker 05: Where the petitioner has raised it, the court does have a duty to review it. [00:22:15] Speaker 05: The court does have a duty to decide it. [00:22:18] Speaker 01: Yes, but it's your premise that I'm questioning. [00:22:23] Speaker 01: The premise that the petitioner did raise it [00:22:27] Speaker 01: adequately. [00:22:29] Speaker 05: In the original 2254 or in his pleadings in federal court? [00:22:34] Speaker 01: Pleading in federal court, right. [00:22:45] Speaker 05: I guess if the pleading is insufficient, I don't know what to say, but I'd submit to the court that the pleading here is not insufficient. [00:22:54] Speaker 05: Appellate counsel was ineffective for failing to acknowledge petitioner's right to an alibi defense. [00:23:00] Speaker 01: Well, I just don't know what that even means. [00:23:03] Speaker 01: And I think it's putting a heavy burden on the district court to figure out what that means. [00:23:09] Speaker 05: Well, all of his exhibits go to the alibi defense. [00:23:12] Speaker 05: The affidavits go to the alibi defense. [00:23:14] Speaker 05: The district court didn't discern that. [00:23:16] Speaker 05: I guess that's why I'm at a loss that the district court overlooked that because of insufficient pleading from a pro se client. [00:23:30] Speaker 05: really the only legitimate claim that he has. [00:23:35] Speaker 05: The other claims that the district court is able to dismiss fairly quickly. [00:23:38] Speaker 05: It's the alibi defense that has evidence to support it. [00:23:43] Speaker 05: The district court certainly should have realized that's what he was saying. [00:23:47] Speaker 01: Yes, counsel. [00:23:50] Speaker 01: Is there any way in which the appellate insufficiency argument is stronger than the trial counsel insufficiency argument? [00:24:11] Speaker 05: Insofar as the appellate counsel had the entire record before him, yes. [00:24:18] Speaker 01: More of a record than the trial counsel? [00:24:22] Speaker 05: Well, he had the record of the trial. [00:24:25] Speaker 05: He had the discovery. [00:24:27] Speaker 05: He had [00:24:31] Speaker 05: He had a bird's eye view of what had already happened. [00:24:38] Speaker 05: And of the arguments he raised, none was likely to result in reversal. [00:24:52] Speaker 05: Since he was in a superior position, knowing everything that the trial attorney already knew, he had a greater duty to identify a trial counsel's ineffectiveness. [00:25:05] Speaker 05: In absolute terms, are they both ineffective? [00:25:07] Speaker 05: Yes, they're both ineffective. [00:25:19] Speaker 01: We've taken you way beyond your time. [00:25:23] Speaker 02: Has he answered your question? [00:25:24] Speaker 02: What? [00:25:25] Speaker 02: Has he answered your question? [00:25:26] Speaker 01: I think so. [00:25:28] Speaker 02: You're over your time, Mr. Axel. [00:25:29] Speaker 02: We'll give you a minute in reply. [00:25:31] Speaker 02: Thank you. [00:25:31] Speaker 02: Mr. Apperson. [00:25:51] Speaker 00: Good morning, Your Honors. [00:25:52] Speaker 00: May it please the Court, Jay Aperson, for the United States. [00:25:54] Speaker 00: Your Honor, the actual innocence claim is not included in the COA in the first instance. [00:26:02] Speaker 00: It is assuredly waived, having been raised only for the first time in response to this Court's order to show cause. [00:26:11] Speaker 00: It lacks merit in any event. [00:26:13] Speaker 00: Judge Huvel applied the correct legal standard, even though McCorgan was not decided. [00:26:19] Speaker 00: the district court clearly stated that not only was it untimely, but said that it did not meet the legal standard set forth in McQuiggen, previously held in the earlier cases. [00:26:32] Speaker 00: An appellant cannot show that it is more likely than not that no reasonable juror would have convicted in light of this evidence, particularly in light of the strength of the government's case. [00:26:43] Speaker 00: Contrary to appellant's counsel's suggestion, [00:26:48] Speaker 00: This most significant witness, Sterling Johnson, knew Appellant and had known him for years from the 80s and 90s, knew his nickname, knew his actual name, and saw him come out of the woods. [00:27:01] Speaker 00: He was then the victim of the robbery by the same individual getting the same car. [00:27:07] Speaker 00: Two days later, the DCCA noted the strength of the government's evidence with respect to identification. [00:27:14] Speaker 00: In addition to Sterling Johnson, the other witnesses who had been held up were in the woods during the time when the victim was held up and robbed of heroin, identified him in court, appellant in court. [00:27:26] Speaker 00: They had previously identified him in photo arrays. [00:27:29] Speaker 00: Other dispassionate witnesses who were on the scene had also identified appellant. [00:27:35] Speaker 00: one in court and another in a photo array. [00:27:38] Speaker 00: So the government's evidence with respect to this man being at the murder scene was very strong as the DCCA noted in affirming the conviction and the denial of the initial ineffective assistance to trial counsel. [00:27:55] Speaker 00: The court applied the correct legal standard and found that the appellant's evidence was neither timely nor credible. [00:28:03] Speaker 00: nor reliable. [00:28:04] Speaker 00: And that's exactly what McQueen stands for, that the court can consider the issue of the timeliness. [00:28:11] Speaker 00: And let's be candid here. [00:28:13] Speaker 00: The underlying claim is that his trial counsel didn't present alibi witnesses. [00:28:19] Speaker 00: Well, the appellant knew that at trial. [00:28:23] Speaker 00: Clearly, counsel did not call alibi witnesses. [00:28:25] Speaker 00: And the question of whether or not there's a stronger claim of appellant counsel being ineffective than the trial counsel, with respect, that's absurd. [00:28:33] Speaker 00: The trial counsel interviewed the supposed alibi witnesses. [00:28:39] Speaker 00: The trial counsel subpoenaed that witnesses for trial and made a tactical decision not to call those witnesses, because those witnesses were identified by appellant in his initial statement as drug dealers, heroin dealers. [00:28:54] Speaker 00: bringing a heroin dealer to give an alibi witness a testimony at trial would have only confirmed that appellant is a heroin dealer and that was the very nature of the robbery and the murder. [00:29:06] Speaker 00: He went into the woods to rob somebody of heroin because he's a heroin dealer and now he wants to suggest that it's ineffective to present heroin dealers as witnesses in light of the government's evidence that he was at the murder scene. [00:29:18] Speaker 00: Extraordinary evidence, strong evidence of the identification. [00:29:23] Speaker 00: Appellant simply cannot meet the burden. [00:29:29] Speaker 00: Appellant's own affidavit. [00:29:30] Speaker 00: You compare his statement to the police. [00:29:34] Speaker 00: and his later affidavit, his statement to the police said I was on the blacktop from seven o'clock in the morning until six o'clock that night. [00:29:44] Speaker 00: His later affidavit contradicts that and says, oh no, I was walking from a residence as late as 820 and before I got to the blacktop and I left at noon. [00:29:55] Speaker 00: So his own statements that he offers as actual innocence are contradictory. [00:30:02] Speaker 00: The district court was correct in characterizing the other affidavits. [00:30:06] Speaker 00: And remember, the affidavits themselves were untimely. [00:30:09] Speaker 00: One was executed in 2003, another in 2004. [00:30:13] Speaker 00: But the information was certainly known to Appellant. [00:30:17] Speaker 00: It was in his original statement. [00:30:18] Speaker 00: And he knew at trial that his counsel did not present these witnesses. [00:30:23] Speaker 00: And the record supports the trial counsel made a tactical decision in not presenting those witness for the reasons that I've discussed. [00:30:30] Speaker 00: So appellant simply, even if this court were to entertain this claim at this stage, and I would urge the court not to do that, appellant cannot meet the standard under McQuiggin, and that's the standard that the district court properly applied. [00:30:46] Speaker 00: is information is neither timely, nor credible, nor reliable. [00:30:50] Speaker 00: And this court should not be asked to second-guess that determination. [00:30:55] Speaker 01: The query reduces the timeliness issue to sort of a factor in applying the actual innocence theory. [00:31:02] Speaker 01: Yes, Your Honor. [00:31:03] Speaker 01: So that's the other two that are really critical. [00:31:08] Speaker 01: The timeliness just being a factor. [00:31:10] Speaker 00: Absolutely. [00:31:10] Speaker 00: And that's the treatment that the district court denoted that it was untimely and recognized the third affidavit itself was furnished more recently in 2011. [00:31:22] Speaker 00: Again, the information was certainly known to appellant at the time of his arrest, much less the time of the trial. [00:31:30] Speaker 00: So that the district court properly applied that it did not say these affidavits are untimely and therefore I will not consider your claim to the contrary said. [00:31:42] Speaker 00: it analyzed exactly as McQuiggan taught and said that that is one factor and that's how the district court treated it as one factor because it made a finding that not only are they untimely but the appellant has not met the burden and the court set out the burden, the legal standard, correctly as McQuiggan because it was the same standard in the earlier cases on that issue. [00:32:04] Speaker 00: So the district court properly applied the correct legal standard here. [00:32:08] Speaker 00: Appellant cannot show clear error on the factual findings by the court. [00:32:13] Speaker 03: Could I just be clear as to the government's position? [00:32:19] Speaker 03: Is the government's position that this court lacks jurisdiction in terms of this was not in the certificate of appealability and there was no appeal of that? [00:32:32] Speaker 03: Or is the government saying, yes, that was its position, but in light of McQuigan, we should address McQuigan, the McQuigan argument? [00:32:43] Speaker 00: No, we should not address the McQuigan. [00:32:45] Speaker 00: I think the court does lack jurisdiction. [00:32:47] Speaker 00: Not only is it not part of the COA in the first instance, it is waived. [00:32:53] Speaker 00: And of course, his underlying claim is time barred in any event. [00:32:58] Speaker 03: So let me just be clear, you said a lot very quickly. [00:33:01] Speaker 03: Let me understand precisely what the government's position is. [00:33:06] Speaker 00: I think the court does elect jurisdiction because the question of actual innocence is not in the COA. [00:33:17] Speaker 00: And the later claim is waived because it's raised for the first time in response to this court's order to show cause. [00:33:25] Speaker 03: And McQueen doesn't affect any of that? [00:33:30] Speaker 00: I don't think it does affect that. [00:33:31] Speaker 00: I'm making an alternative argument, even in this court. [00:33:33] Speaker 03: No, I understand, but I just – because you haven't had a chance to brief this. [00:33:36] Speaker 03: Exactly, to brief it. [00:33:37] Speaker 03: So I'm trying to understand what the government's position is, because I understood your first position as it's laid out in your brief, but now this case has evolved. [00:33:49] Speaker 00: Well, I think McQuiggin goes to how you analyze an actual innocence claim if it were before the court. [00:33:56] Speaker 00: For the reasons I've stated, I don't think it is before the court. [00:33:58] Speaker 00: But even if this court were to entertain it, McQuiggin, the district court, followed the standard of McQuiggin, did not use the untimely affidavits as an absolute bar. [00:34:09] Speaker 00: To the contrary, considered it, as McQuiggin taught, that is one factor, and that that goes to a determination of credibility and reliability. [00:34:17] Speaker 00: And the entire record shows not only untimeliness and huge untimeliness. [00:34:25] Speaker 00: I mean, these affidavits were way late. [00:34:28] Speaker 00: The claims were way late. [00:34:29] Speaker 00: Never raised the ineffective assistance of trial counsel for not preventing an alibi until 2004 after shifting positions. [00:34:37] Speaker 00: Never raised the appellate counsel argument 2008 for the first time after previously raising claims of ineffective assistance of appellant counsel, but not this claim. [00:34:48] Speaker 00: Appellant has considered the entire record here is an appellant continuing to shift positions, not only from the statement to his affidavit, but in all of his pleadings, and then wants to go back and come onto some little snippet that he mentioned about exculpatory witnesses. [00:35:04] Speaker 00: As we show in our brief, the exculpatory witnesses were the police. [00:35:07] Speaker 00: He made it very clear in his pleading. [00:35:09] Speaker 00: It was the police officer and the investigator about the vehicles. [00:35:13] Speaker 00: He never mentioned alibi witnesses and then try to re-characterize his earlier pleadings is insulting to this court, quite frankly. [00:35:24] Speaker 00: Unless there are further questions, I urge that the judgment of the district court be affirmed. [00:35:28] Speaker 02: Thank you. [00:35:30] Speaker 02: Mr. Axon has no time. [00:35:32] Speaker 02: Why don't you take a minute, Mr. Axon? [00:35:37] Speaker 05: First, I would say that the government never cross-appealed that the district court found that Martinez v. Williams allowed Mr. Adams to go forward in the district court. [00:35:51] Speaker 05: So the question of timing, when the district court decided it, was not appealed by the government. [00:35:56] Speaker 05: It was not cross-appealed. [00:35:58] Speaker 01: Why is there need to cross-appeal? [00:35:59] Speaker 01: Well, the government stood here and said that I weighed... The basic position of the government is it wants the district court opinion affirmed, period. [00:36:11] Speaker 01: Full stop, right? [00:36:12] Speaker 01: There's no need to cross-deal under those circumstances. [00:36:17] Speaker 05: The district court opinion allowed Mr. Adams to go forward, finding that he had not been time barred. [00:36:24] Speaker 01: Yes, but the outcome was one which was entirely acceptable of the government. [00:36:29] Speaker 01: Yes. [00:36:29] Speaker 01: There's no need for cross appeal. [00:36:32] Speaker 05: I understand. [00:36:33] Speaker 05: But the question of timing is something that the government has raised, not appellant. [00:36:40] Speaker 05: So for the government to now say that appellate waiving by not requesting that the question of timing be decided in the COA, that's what's counterintuitive. [00:36:54] Speaker 05: Timing was on our side when the COA was issued. [00:37:01] Speaker 05: The appellant never would have had a need to raise time. [00:37:07] Speaker 05: It's only the intervening decision that assists the government, Henry Wilson, that allows the government. [00:37:14] Speaker 05: McQuigan is also intervening after the district court made its decision. [00:37:20] Speaker 05: And I don't think that this court should ignore McQuigan. [00:37:25] Speaker 05: The Supreme Court has made it clear that [00:37:29] Speaker 05: In habeas proceedings where there's a claim of innocence, courts certainly should not ignore those claims and should give them fulsome consideration. [00:37:41] Speaker 05: I'd just like to correct two factual matters. [00:37:44] Speaker 05: And the court can review these matters for itself in the record that's in the appendix. [00:37:51] Speaker 05: But Sterling Johnson does not identify Mr. Adams on the day that Hamilton is murdered. [00:37:59] Speaker 05: He identifies Mr. Adams on the day he is robbed and the day after. [00:38:05] Speaker 05: So he does not say that Mr. Adams is coming out of the woods. [00:38:08] Speaker 05: Someone who knows Mr. Adams. [00:38:11] Speaker 05: which they say is their strongest evidence that Mr. Adams committed these murders, is not the person that identifies it. [00:38:19] Speaker 05: The persons that identify Mr. Adams are the persons I identify in the brief. [00:38:25] Speaker 05: You have Mr. Wright and Mr. Montjoy, who are in the woods at the same time. [00:38:30] Speaker 02: All right. [00:38:30] Speaker 02: What's the second fact? [00:38:35] Speaker 05: The government also claimed, and I actually find this offensive, that they paint with such a broad brush all of the people who are on the black top, the location of Mr. Adams' alibi, that all of those people are drug dealers and heroin dealers. [00:38:51] Speaker 05: That is not what Mr. Adams said. [00:38:53] Speaker 05: Mr. Adams said that he was dealing drugs. [00:38:56] Speaker 05: He did not impugn all of these other people. [00:38:59] Speaker 05: So there are 15 people that he identifies. [00:39:03] Speaker 05: through the course of this litigation, there are 21 alibi witnesses. [00:39:06] Speaker 05: I understand that defense attorneys spoke to at least one, possibly two of these. [00:39:12] Speaker 05: But with each alibi witness, Mr. Adams' evidence becomes stronger and stronger. [00:39:17] Speaker 05: And Mr. Adams has never had an attorney investigate the assistance of an attorney to investigate those alibi witnesses and to assess [00:39:29] Speaker 05: the strength of their testimony in light of the weak trial testimony against them, the weak evidence against them. [00:39:38] Speaker 05: I know that my time is up. [00:39:41] Speaker 05: Thank you.