good morning your honour's it please the court my name is susan ferguson i'm here to represent the ellen and this is my first time before you and i consider it an honor to be here and we're here for two reasons today the first is that trial counsel failed to secure the testimony that he was going back and forth from mexico and maybe staying at some cousin's house i don't understand why the judge found that his testimony was more believable than her testimony yes define that or what do we do about that i think it's clearly desperations with which contradicted each other and then in his testimony at the evidence here hearing he gave an entirely different version that was first declaration in the motion for new trial he said that testify and then based on that decision it was he decided not to try to locate subpoena or interview montana and then when he came into the evidentiary hearing  and said well he did try to locate montana what some point but he couldn't be found so i just think that that's the finding that martinez is i think we need to focus on your client actions when the government points in particular and says the reason that we can't say that this record was clearly erroneous here is that if we accept your client's scenario it's inconsistent with what actually happened when she came to lawyer number up well i think if there was any miscommunication it was between griffin and the house because the palace anish and she has about a second grade level education so i think there may have answered miscommunication there and griffin testified that wasn't that she said that and griffin didn't understand it i don't think she said that she said that i just seems to me if if she's just counting on her boyfriend coming in and testifying and our lawyer doesn't call the boyfriend then she got mad at the lawyer and will say that the lawyer number two but that's not what happened so that's that's the problem i have that's why i well i think i can see martinez a story that hangs together real well it did seem to change under the circumstances but on this most fundamental point i'm not sure that your client story hangs together very well either well i would submit that if there was any miscommunication it was between appellant and griffin and it is due to her level of education and the language barrier and she doesn't know what correct and that was what she had told griffin was that there was a witness who was available who could testify to exonerate her so why didn't the witness in my answer take any steps to get her boyfriend to come testify well she brought him well she brought him in once if you believe martinez according to her she brought him in more times but isn't once and not doesn't doesn't martino's have an obligation to at least talk to him to assess his credibility to get his contact information something even if you believe martinez it seems like he should have done something to secure the testimony of montana so i think that that once is enough and i think that it's if it was the appellant duty to take substantial effort to locate and call witnesses then the constitutional right to effective assistance of counsel would be meaningless and  evidentiary hearing for the twenty to fifty five motion there are conflicting accounts as to the circumstances as to why antonio montana the defendants for a friend did not appear in testify at her particular trial let's take let's take martinez the lawyers testimony is true the way the way judges shoved it yes what do i understand correctly martinez testified the reason he didn't interview  because he didn't want to make himself a witness in the case i don't know if he made that exact representation and certainly that would be something i think any lawyer would certainly have in their mind if you would on the third party present i mean if someone brings in a witness who's going to completely exculpate the client he wouldn't take a statement if he'd let that he'd let the crucial witness leave the office rather than make him stop a witness i mean the worst that happens is he's a witness then testifies that he had a good sense as to what generally mr montana would have testified to namely that it was his drugs not hers she was involvement transaction and if proved she walks now that's the other irony of this matter is he was not physically present during the drug transaction that occurred at the el cerrito parking lot in august of one thousand nine hundred eighty sacramento california home when he couldn't hook up with the person is going to help with a drug deal that she said she when she said i'll take care of it so she then rides in the car that has the drugs in it all to read only get to the parking lot she instructs boyfriend and was fourteen says i was never told that particular practice he said but he can't find them i think this case is a marvelous reason why you have the rule of having high levels of deference to just a court hearings on these matters and it's only for clearly erroneous  that hearing his justification and this was satisfactory to judge that he did demonstrate adequate diligence in this reason most performance was namely where the investigator go well the only person who had contact with mr mind tano in our region appeared to have been mr dulles the defendant and appears to be her family as well and the most information they have is that he had a tendency to go back and forth to mexico and then back up to after the arrest it was a month after she'd been convicted at trial then this hero comes forward to provide a statement and the notion that if you had a subpoena for example he would have shown up because he now has subpoenaed by an investigator he would be in shack les being detained prior to trial would just be a subpoena document it's the same in every debriefs and gives a statement and says he's going to enter a change of plea so that his girlfriend could get a fifty percent reduction on the sentence he flee he's still a fugitive today so the notion that even if they had found him and they had subpoenaed him that mr montana would have done anything different is highly unlikely there's also a significant question as to what role i absolutely i mean i don't mean to suggest that he doesn't understand the idea that were he to cooperate in providing information that there could be a benefit the nurse to his girlfriend but when it came down to it he wasn't willing to take the steps that's when i started my my remarks i don't mean to be relieved to be flippant but it's the blame is not the feet of mr martinez the blame is at the feet of montana her boyfriend she hooked up with a bad guy it's their record was clear at the trial that when he was not able to help carry out the drug transaction she was put in the play i'll take care of it and then finding if there was a conflict of interest such to trigger ineffective assistance of counsel so the court had in front of them were conflicting accounts and maybe less than perfect efforts by mr martinez but tuscany which usually they do when you have an illegal immigrant who's confessed to a sixteen pound methamphetamine deal so it's it's odd to me that that twice he was in court in front of the judge and they didn't ask him and usually illegal immigrants oftentimes don't get bail so she would be out of prison today had that not happened and also another thing martinez could have done when manzano did physically go to his office is simply ask for contact information so he could find in the future why was he relying on the appellant to continually bring him in so that that's something basic that he could have done so i think even if you believe him he