Read the following excerpt from a US court opinion:
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which he used during his cross-examination of the witnesses. Resp’t Mem. at 6 (citing Petitioner’s Affidavit in Support of 2007 C.P.L. § 440.10 Motion to Vacate; Petitioner’s Statement of Facts; Petitioner’s Memorandum of Law at 3,4; and Petitioner’s Exhibits B, D & E, attached as App. PP to Resp’t Ans.). Furthermore, as Respondent points out, Concepcion acknowledged in one of his pleadings filed in this case that he had heard the audiotape when his attorney visited him at the prison. The audiotape of the witness conversation therefore cannot be considered “newly discovered” evidence for purposes of an actual-innocence tolling exception to AED-PA’s statute of limitations (assuming that such an exception exists). See, e.g., United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir.2000) ; Williams v. Phillips, No. 04 Civ.4653 DAB
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What is the most suitable continuation to the opinion? Your options are:
A. holding that affidavit from a new witness was not newly discovered evidence because trial counsel knew of the existence of the witness before trial trial counsel with due diligence could have discovered the evidence
B. holding that posttrial discovery of asserted newly discovered evidence did not satisfy the requirement that the evidence must be such as with reasonable diligence could not have been discovered and produced at trial
C. holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted
D. holding that to obtain a new trial based on newly discovered evidence the defendant must allege facts from which the court may infer diligence on the part of the defendant
E. holding that unavailable evidence may constitute newly discovered evidence if the failure to learn of the evidence did not result from the defendants lack of due diligence
Reply with [A, B, C, D, E] only.