two grounds and i'm going to focus my remarks this morning on only one of those grounds that is our challenge to the district court's finding mr hutchinson was prejudiced by his trial counsel's deficient performance in not investigating a the evidence that the on the question of whether the robber as shown in the videotape was too short to have been mr hutchinson worked at all you really can dispute even in the district court at the performance of deficient that you i believe we did your honor in our in our post trial briefing we made the argument that we thought if mr katz about ski the trial counsel was to be believed on some of the things he said that that showed a tactical basis when the trial court made credibility findings adverse to mr katz about adverse to our position we feel like we cannot make an argument hearing that the independent review that this court undertakes to determine whether the state court rejection was an unreasonable application of strickland necessarily encompasses both the evidence the trial and the evidence presented at the evidentiary hearing as we see this case it comes down to this question is confidence in the verdict undermined is there a reasonable probability that had the photogrammetry expert m testified at the trial as he did at the evidence rehearing that one or more jurors would have had a reasonable doubt about mr hutchinson's guilt now the district court said yes obviously the district courts say that the state courts failure to find means expert opinion was ignoring the posture of the man as shown in the seven photographs i suppose this is kind of glass half empty glass half full stuff what he said was that that the person in the videotape the robber in the videotape could not have been taller than what five six five seven that's now what i understand his testimony to be your honor i understand his testimony to be that from the bottom of his feet to the top of head as shown in the posture in the videotape that the maximum was five foot six and a half inches so the question then becomes that's different from five foot six or five with seven correct because you're not standing erect  your your height is based on how tall you are when you're i thought he did a number of measurements and still photographs and and then he came to a series conclusions about height opinions argue that his conclusion was from the bottom of his feet to the top of this head as shown in the video ignoring in his posture because in the area you're listening to that testimony had out as to whether a person six foot two could have committed the crime i don't think so your honor for this for this reason for this reason in one of the photos he's five ft there's five foot in another photo it's five six and a half so there's a six and a half inch difference there from his movement from his posture expert thought that one of the photographs was probably the most accurate in the sense of estimating height the it was when he was acting the robber was we would argue that that's not a reasonable inference from that picture it's taken from the back his knees are bent i don't think a jury would accept the argument that that man could not have been hunched over anywhere from a to several inches we just don't know there was that question the crucial question there's just no expert evidence on that it would have come down to arguments among the prosecutor in defense counsel defense counsel over that would be five and a half to seven and a half inches in that photo the prosecutor would have argued you can't make that judgment in that picture the picture shows only his back his knees are back but the correct we did not but i would argue that the jury would not have been compelled to accept that expert evidence that the jury would not have been compelled to accept that that man is fully erect and that he can't be hunched over th argument would be that there's no reasonable probability this jury would have found him guilty based on the evidence of mr stuff from him because it's just not it seems to me sufficient to say that he could not have been hunched over five and a half to seven and a half inches when he was hunched over in some of the photos shown at least five and a half to six inches and then when you measure that against what we would submit and i fully acknowledge that the district court found the prosecution's evidence a trial to be weak we take exception to that position you know in our view the evidence at trial was not we first of all we have a victim who knew the defendant he was a regular customer given the defend the defendant had given her his name she testified that she recognized him outside the store as he put the nylon over his head you know but there was another witness who talked to her the store clerk fairly quickly after the crime they talked about it and she said nothing about seeing him outside i disagree again with that your honor the t estimony with respect to the police officer is neither were the victim nor the police officer could remember whether she had told him about there was but mr salat testified to this your  honor he testified that he could not recall what she told him to slow mellie about the incident other than quote somebody had peeked around the corner and quote that's r t ninety she said somebody pulled something down over their head i would suggest a reasonable  e from that is she was trying to tell salat store clerk after the incident what she ultimately testified to a trial she saw him outside putting something over his head and she said sal to mr salim as mr salah testified the petitioner was his friend she also said i couldn't remember his name at the time because the other times i had seen him he had worn a ponytail  burden is not to establish it actual innocence but reasonable doubt correct in the mind of a single juror that's going to be cameras languish and we would argue that that test just is not met i must the court has any further unwise the videotape and made seven still phone graphs so he would get the suspect in a full measure of the stride of his running strike from the shortest to the tallest the shortest was five feet the tallest was five six and a half and indeed as he testified that the one in his trial exhibit thirteen it's in the briefing page twenty one in a police briefing it's in the excerpt of record at page one hundred sixty two he testified that as you look at that the defendant or the suspect is not only at his tallest he's nearly purpose and there's no suggestion that those marks were changed or altered in any way between the time of the robbery in the time their made his observations it was just the opposite the photograph was taken at the time of the robbery with the height strip on the office height of the robbers or that's correct so you can see there's at least a pretty good possibility right that the person in could he be six two which is what he'd have to be and the question isn't really could he be sixty that would be an actual innocence crime which i'm not raising the question is is the absence of this photo undermined confidence in the outcome of trial and let's take a look at the photo council and i have talked about the photo your honour's have copies of it page twenty one in page one sixty two to question one sixty two of the expert if you look at this photo and the question is is there some way a reasonable juror could look at that photo and say gosh i think there's another seven and a half inches in that frame i think i could have established a national innocence crime because i think the answer is you know you give me twelve jurors you see twelve people in the box all twelve are going to say this person isn't six to but that's not what i have to prove as counsel suggested he was right about this the standard is would one of more jurors who had a reasonable doubt and the answer is looking at this photo the answer is yes and the thing i would add to that is that when mr which that decision it was very persuasive would not a single juror among twelve look at a photo of someone who's five six and think that he's six two that's not likely to happen but at the same time you know in terms of  witness identification from someone who when was when was when she spoke to police officers right after right after the crime said here's what happened i was standing at the cash register i heard a noise behind me i turned around and there he was at trial this witness suddenly remembers that indeed he saw petitioner michael hutchinson outside of the store hanging out putting on a mask and coming in the store those are very different stories this was an eyewitness that was fired from a job for repeated cash or just this is not an eyewitness above reproach so we're not talking about you know getting the pope on the stand saying do you recognize this person yes i do this is an eyewitness with serious problems and this was a case without a single piece of corroborating evidence there was no physical evidence that tied petitioner the crime the possible that this photo on page one sixty two that there could be an additional seven and a half inches is really what i call and i hope the court appreciates the reference to groucho marx argument i used to be a great fan of groucho marx arguments and he used to he used to walk around with cigar crouch and that's really the argument is that what that's what this person was doing out be it without the cigar he was actually crouching down seven and a half or eight inches when that photo was taken and if you look at that photo and i you know the court has two copies of it market was up along the side of the doorway right i'm sorry your honor he would have the motive to an incentive to crouch because he knew that the doorway was marked with a scale he may have actually i did not i would have had such a motive perhaps you get in the question is did he trash and rather than have counsel and i argue look at the photo his left leg is bent his right leg a straight counsel saying he's bent at the waist seven and a half inches from there was no expert testimony in fact our testimony was undisputed the trial undermined confidence in the outcome of trial jurors looking at this photo would have a great doubt of the prosecution's expert witness who was the photogram witness could have testified based on the inclination of the leg how much or how little the h gardner and i agree on the significance of that photo he says there can't be seven and a half inches there doesn't have to be seven and a half inches there only has to be five and a half inches because again one witness said the victim he was six foot there's no definitive evidence as to mr hutchinson tike six foot six two the petitioners conceded below there's no evidence other evidence that he's that he's six one seven and a half five and have six and a half inches that's not a lot you could take a ruler and see that there could be five and a half to seven and a half inches in that photo if i'm wrong i lubed it's that simple i'd also like to say this about the the statements about miss low mellie and the cash shortages there were in  the record we know that she lost her job for cash shortages the story manager testified contradictorily that they were either frequent or a couple there was no evidence as to whether they were intentional or accidental mr gardner said that her testimony changed at trial when she said that it was for the first time she saw the petitioner putting over the mask again i would refer to what mr salat testified the victim saying that he told she told him she saw somebody putting over a mask so i don't think it's her inventing at trial for the first time that she saw his face and again i would repeat that the petitioner himself testified that this woman knew him well well enough  then as we were litigating this case we have an entry hearing there was a piece of evidence i attached to the motion for exhaustion heights take it to mr hutchinson in princeton where he was