and i would like to reserve me at least five minutes for a bottle i would like to begin this morning by addressing our motions to its face on the record we filed two motions most important i from the comp attentional informant whose identity was the subject of that you can wear hearing mr karr crack we believe that the information contained in those documents is important to resolving the issues and i understand in part your honor i believe it's because the record in particular from the interim or hearing it's time went completely and there were numerous flaws which impacted each other resulting in prejudice testifying for himself on his own behalf regarding his intent when he entered the vehicle that he was not the shooter that he did not accept any shooting with take place and that it was the responsibility of the others in the car there was a great deal of effort on trial counsel's behalf to show that mr meeson say who was given the plea bargain and prosecuted as a juvenile he is now out of custody the credibility issues with mr unceasingly including the fact that he failed the polygraph given by the state and that the state simply revised his plea agreement to take that requirement out there were clear credibility issues as i understand all that i just let is that if we had known about this witness we could have brought out of the conversations that he had with the defendant after this truly end and in fact there are houses they were born from friends but that was already known right to the time of the co defendants arrest and there were representations made to the defense counsel that they had been given all information on how to contact these individuals or not course of the in camera here in the trial court last address that i have what he doesn't say is i know this individual is in a job corps program in another state he knows that these defense counsel are not going to be able to locate this individual he doesn't provide that information make there had been some police misconduct at the time of the arrest and that was the reason that efforts have been made to locate mr prac and unsuccessfully as unbeknownst to them he had moved out of state by that time and to the gang members recounting of what had happened that night and in particular to mr unceasing ney's intense why he had entered the car that night had mr unceasingly testified he would have stated that he got into the vehicle with no expectation that any shooting would take place and that well could have been supported by the testimony of mr degree murder would not stand if he had not been the shooter and if the evidence that we are suggesting should have been presented had been presented as i said defense counsel are requested repeatedly for an instruction instruction on manslaughter on reckless indifference as opposed to any type of premeditated murder and that that is perhaps a more appropriate charge for mr unceasingly his conduct this is not a case of actual innocence he doesn't dispute that he was present what was crucial at trial is what was his intent and what were his actions once he did get into the vehicle that night for a member he's a fifteen year old boy who had never been in a criminal trial before he no doubt was very confused when the court prior just prior to closing arguments counsel moved to reopen the testimony to allow process and confrontation aspect of this claim the court and just simply look to the hearing in this case which was recognized to be constitutionally flawed where the informant wasn't presented counsel weren't allowed to discuss the issue with their clients defense counsel wasn't allowed to be present at the hearing wasn't allowed to submit questions and the trial court asked with very limited questions of the police officer who misrepresentation in his police report was the very basis for the hearing so we certainly say that that decision is both contrary to the governing president and based on an unreasonable determination of the facts in light of the evidence presented also i think significant disrespect that was prior to holding a role the aro hearing there are supposed to be some showing on the part of the state that there is an informant whose identity needs to be protected and with us never quite vigorously we have no information who this person is what their role is that they have any fear on behalf and in fact as it turns out he had relocated to another state he might well not have felt the same fear o reason that the washington supreme court decided in write carlstadt in two thousand and three was because there was a conflict between the divisions of the washington courts of appeal and state versus so what is your best argument that washington did not consistently enforce their existing rules so that well your honor the street bears the burden of showing that this is a consistently applied and well established rule and again i rely on the fact that it was not until two thousand and three but the washington supreme court sat and answered the question as to whether or not this rule should be applied and and how it should be applied in washington state that there simply wasn't washington well to simply by the fact that there are cases that in looking at the law and the state of the law and later cases allowing and coming to the conclusion that the mailbox well should i don't have a case off the top of my head to address that but i believe that's just the general principles of procedural procedural law would support them bennett versus miller i believe was the case that created the burden shifting rule the burden initially rests on the petitioner just show inconsistent application and position or cannot come forward with any case showing a consistent application this court were to conclude that there was a nice consistent application of the petition still has not exhausted the claims because we never presented them to the washington supreme court and then this is claim one thank you and claim six he did not fairly present them at them that's what he did was he put them and appendage to this motion for discretion of are you in a supreme court held involvement versus agrees that type of incorporation by reference case here is that he never raised the claim in the body of his petition as he was required to do under state law state law required and there are also raising the claims set forth in this attacks between and that is not supreme court you must identify it in the statement of issues from the beginning of the of the of the the motion of the petition and you must specifically identify those issues in present argument cannot incorporate that reference from another brief but even if the court were to consider mr craft's affidavit it is still not sufficient to show presence the majority of the information contained in this affidavit is hearsay it's hearsay or it's double hearsay one saying this detective told me that some unknown person has confessed to being the shooter is not admissible evidence the statements that the petitioner told me that he wasn't the one who pulled the trigger is not a that the petitioner said to mr pratt he already knew the position already knew that he allegedly made the statements so the ferry to disclose the informants identity does not cause the prejudiced attached and whether that itself prejudice the defense in the supreme court and i would submit to the court that the supreme court's holding this area are not very broad and that to the petitioners attempts to rely on c enough for your honor i believe that the detective answered honestly when they said that you have my last known address the fact that he's in another state and let's say that it had just as i think he's in another state testimony could have been the truth all the only thing that he could have sat under the affidavit presented to the court is if the petitioner actually testified and then their wors the prosecution presented evidence to show that he had made recent fabrication of a specimen and then under eight zero one d d that little bit could come in that is not enough to show that he would be highly relevant or helpful to the defense because it is pure speculation that we would even get that far it's speculation that he would testified it's speculation that you would have needed to corroborate his prior or as testimony with a prior consistent finally i would ask this court and considering the the issue of prejudice to keep in mind that the petitioner was cited and entering there was testimony that the petitioner entered the car with the rifle that was there was testimony that he fired the rifle and there was testimony that when he returned he said we we shot them up we shot them up his claims that i didn't know what was going to happen i had no idea that there was going to be a shooting it simply fail in light of the testimony that was presented at trial and i believe your honor had a question of whether he could be convicted even if he was of the should actually shooter and i apologize i have not recently reviewed the jury instructions but i believe that under washington's accomplice law he could be convicted even if you was implicitly includes that the underlying claims themselves and and secondly with respect to whether mr crack has provided information helpful to the defense i think it's not only ask him did you confess to deputy castillo to being that you were the in fact the shooter and they could have asked that question with a good faith basis based on this tour practice testimony not to mention there's the statement that  mr castillo made the statement to mr pratt there could have been investigation were there on their individuals present were there other individuals who would have heard this confession could have been a great deal of investigation to find out the source of that statement and  argument this morning