first trial didn't end in a hung jury the first child ended in a conviction right right and there was a remained because there was a determination by a different panel on a different day many years ago that evidence was admitted pregnant to the  apparently unfairly prejudicial right right ok so at this second trial there think there's a discrepancy in the record about why she wasn't called but why is it that we should if you if you focus on the second prong if   what she talked about kind of carefully in the last few days she's a pretty wobbly witness right even at the first trial she was pretty wobbly sure she was a typical witness in this kind of a case i think is special where you're you've got gangs involved in this kind of thing there's no doubt that she wasn't the perfect witness and i don't think you can ever expect a perfect lawyer and that's you know why we're a little reluctant to complain about another attorney's performance but when you look carefully says and of course the thing that happens the first thing that happens in this trial is mr a mess because attorney walks in and says let's admit mr robey has those testimony my client said the death certificate he actually there because you haven't demonstrated was anything wrong with that anything wrong with not challenging the death certificate correct if there was nothing to challenge well there's evidence code sections that talk about introduction of the with the mexican dystrophy i can't even read i'm sorry i'm not understand your question well i guess my my question is lawyers know things that aren't necessarily a piece of paper i e that this guy is dead he might well 're on trial and you're what your lawyer comes to you and you're in custody and he says what you think about this death certificate and starts talking to you in confidence about how we're going to verify it's an actual you know we're going to provide some foundation for this appeasers testimony simply comes in and we know that happened whether it's objectionable or not when you look at mr abusers testimony overall he basically says i had nothing to do this with this i didn't go inside the theory right this is certainly a legitimate defense theory ok so what did mr rubb let's bring to that trial what would she have brought that could actually change the outcome what her testimony was that she was paged by mr robey so he was a main player he was someone that it was actually arguing with her to get real problems to come along with them and do something she contradict him harm several other good points for example she had phone records that could have been brought out to show it was mr piece of the pitcher that was something someone dropped the ball on she knew mr obie's would be florence you thirteen gang member and he denied that later he said i i hang out with these guys and associate or a guy and i'm not trying to interrupt you but but whatever it is she could have brought seems to me that that would have been awfully fuzzy and then she had on the other side of the ledger given that where people under a home but she wasn't a witness to the shooting right no right but she said that mr i'm not sure if she ever said that mr misquote was never with the group but she denied seeing him that night no she didn't say that  and in fact was in some ways harmful because she didn't negate the notion that he was one of them except that she says i know him and i invited this group to my house and i argued with some of them and it seemed like they had sufficient interaction if you know the guy good morning your honour's and may it please the court kimberly donahue california deputy attorney general on behalf of respondent appellant has failed to meet his burden of establishing ineffective assistance of counsel he cannot reach the burden of showing that there decision may have been a tactical one it would help me out with that i recognize that that was expressed i recognize what defense counsel had to say about that if it was said it was a strategic or tactical but how in the world is it tactical to not call her what's the downside while the downside is  exactly what we've been discussing earlier is that mr morality is testimony opens the door to the possibility that mr mass choir was part of the group that was part of the shooting that night why because at will specifically after that i mean the door's been opened right there's eyewitnesses at the scene so the doors open sure absolutely and and in addition to that though i think that the purpose that appellant has been arguing that he would want to call her in the second trial was to impeach mr baez was testimony right  well again there are other witnesses that can impeach mr obeys those testimony without further opening the door and to the possibility that mr man's quote was there as the court recognized previously the  testimony that she did not see the all of the people who were outside her apartment that evening after the shooting again leaves open that possibility but additionally when you look at the testimony of other witnesses mr robles for example his testimony does this particular witness is that in the first trial the vast majority of her testimony actually had to do with appellants codefendant and so again that the trial court in characterizing her testimony is only marginally beneficial is an accurate one here and here again because as your honor has mentioned look at worst it opens up the possibility that mr him as well was there but again appellant was able to present his defense using in the retrial the sole testimony of mr roadways to impeach mr obey so and again you do have the additional identification witnesses who identified mr him as well as one of the two shooters they were at the shooting mr ellis was not at the shooting and so to preclude the ability for the prosecution to further argue that mr masco was there both before during and after the shooting it was a tactical decision not to call her by defense counsel with the appropriate standard for us for the prejudice review if the state court didn't reach prejudice i believe that the proper standard is a to no vote standard in that case because the state court did not reach that but again either way whether whether you can find prejudiced or deficient performance both of those are required in order to great relief in this case and as as our probably written and where twenty years later we get d n a evidence and someone who was one hundred percent certain a trial has now formally aidid somebody now we find out it was there was a problem and i would have felt a lot more comfortable in this case as many cases if there was something about a blind six pack procedure if you don't have interested detectives doing the sixpack if you ha