fourth amendment claim a failure to explore the identification procedure and undue suggestiveness and then the trial strategy so just briefly on each of the three trial counsel did argue that the police didn't have probable cause to go and arrest petitioner on december twenty eighth because the photo array from the day before relied on a photo spread that did not include petitioner it mistakenly included a nother shelton thomas so he didn't argue that the day after that faulty photo array they didn't have probable cause to arrest petitioner what he failed to argue was that interrogation of petitioner began on the day of the arrest the arresting officer found out about his mistake he found out that when the photo array occurred  petitioner was not in it and therefore he didn't have probable cause what trial counsel should have argued was that at that moment during the custody on terra geisha petitioner should have been released because there was no longer cause to hold them anymore because they're no longer was a selection from a photo array and there was no independent evidence that petitioner is the one who committed this crime they should have released him during the course of that custodial interrogation instead they held him for a multiple people have identified you and petitioner said that can't be true and the arresting officer pulled out a photo array unsaid you know someone had written down number five and refused to yes so at that moment that's why the custo custodial interrogation is relevant because at that moment they no longer had probable cause to hold him they didn't have a right to keep him in a cell they didn't have a right to go and get fillers they didn't have a right to subject him to that police arranged and the defense counsel failed to ask for a hearing a pretrial hearing about the parties being known to each other if they were known to each other then it's a confirmatory identification as opposed to a police arranged identify identification procedure between strangers and he failed to explore that there was some kind of claim that they knew each other and that kind of bleeds into the last of our three points even though all the yes she said that she knew him and this did not this was not allowed to come in that the trial court made a ruling that this would not come in and that if the defense at the trial counsel elicited that she knew him she had seen him beating people up on the street and shooting people for fun so that was the last of our three points that trial counsel made these decisions to bring certain things out and i think he did it in part to explore the point that your honor just raised about whether she knew him or not and whether she'd imply that they were strangers and i guess that's inconsistent with what she said about knowing him was inconsistent were not knowing them was inconsistent with what she ended up testifying to at trial that he shoots people for fun that wouldn't have committed but trial counsel brought that in but actually it was beat up people from more than that  so damaging i don't think anyone could reasonably call it trial strategy you know we attempted to interview the trial counsel we tried to get his notes from his the case and and then in the end submitted an affidavit without giving us notes and without speaking to us and he didn't address what his trial strategy was now the who are below and the district court reasoned as your honor suggesting that maybe it was a matter of weighing the two things the other thing he brought in was that petitioner was identified at a lineup as a perpetrator by a guy named freddie patrice freddie patrice had testif at trial that he didn't identify anybody at identification procedures and the travel judge wouldn't let the people admit that he had identified people through the officer that would have been hearsay but t counsel elicited that our client had been identified by friday patrice as a perpetrator of the crime so yes it could be trial strategy but under the facts of the case these two things that are so damaging morning money machine i represent the respondent we are just to decide whether a certificate should be granted and the standard for that is whether there was a substantial showing of a denial of a federal constitutional rights so the question is that judge judge donnelly get it wasn't there's a presumption of effectiveness here judged on the when thorley through all of defendant's claims and made the determination that in fact that presumption had not been overcome either because either defense counsel did in fact make the argument that defense counsel is claiming they didn't make in terms of probable cause he did argue that because there was no probable cause the lineups should be suppressed and the of the other important thing to remember is that in terms of probable cause just because of the mistake that didn't mean probable cause i mean he was eliminated there were there was a lot of there were numerous anonymous tips the diff the defendant's own statement to detective morton in which the mistake was uncovered the detective martin defenestrated giving an alibi because the detective had said and he said oh yeah i went to this place at this time that said well that's interesting because we have information to say that the murder occurred at this time oh no i meant i was there at that time so detective martin was saying his inconsistent statements the anonymous tip plus only a charles when she looked at that picture she said i'm only ninety percent sure and i need to see him to make to know for sure and he said that he could see how she could have made the mistake the appellate division we submitted a picture the arrest photo as well as they had the photo from the array and the appellate division found there that there was a resemblance so the fact is the state courts have already made a finding that there was a striking resemblance and therefore if you if you couple and not the anonymous tips were somebody actually mentioned the name sheldon as well as his correct address and you couple that with her being ninety percent sure where there's no there's no dispute that there was a striking resemblance at least based on the new york state courts findings then there's nothing to suggest the defense counsel is anything wrong here in terms of the other two points other than to say and i can't make say this any stronger is that even when my adversary was suggesting the three points he was about to raise to this court he said and the third one is trial strategy we all know when it comes to strong strategy that's something that you don't second guess post conviction is long as it's reasonable