morning in terms of what those facts are but i did want to talk to the issue of the standard of review with regard to the facts i think that's an important issue here and we have contended from the outset that the that the  when we brought the companion hey this petition in the state court of appeals they denied that they heard the case without an evidentiary hearing and then they made certain findings of fact now we are contending that because we have diligently s an evidentiary hearing and the state court refused to give it to us that the a p a deference to state court findings of fact does not apply and i cited to the case that i have been arguing this in terms of law because if the if that doesn't apply then where we've got the old law but there is a nice fairly new case which i brought to the court's attention which which lays the south very well taylor versus maddox three sixty six after nine ninety grant really unless it was based on an unreasonable determination of the facts in light of the evidence presented in state court that's one provision regarding the facts and then you've got this one which says that a determination of a factual second one you don't get to this presumption of correctness until you first get past whether there's something fundamentally wrong with the procedure by which the state court determine the facts in the first place and the holding i significantly the presumption of her recognized and a clear and convincing standard of proof on me come into play once the state courts backed findings survive any intrinsic challenge they do not apply to a challenge that is governed by state court to grant and evidence rehearing when when the accepting that fact is true the only way that you can rebut the fact is with contrary evidence you cite as that's the kicker alibi halma has a problem with her right now and we say on that one that the state court determined apollo was incredible but that's a court couldn't do that because they hadn't held never denture hearing to make that determination and a reasonable explanation for why she didn't testify at the at the state court at trial was the trial counsel didn't didn't prepare her did it to do that but was and is not a finding though it's a finding and it's a finding of fact the thing is it's not entitled to the kind of deference that respondent wants to give it it's not additional one which which was vague as to what he said and then there was a second one that was much more specific and it's the rebuttal declaration that we're relying on now you can argue with us as to whether that's credible or not but but presented in the record and it's called the rebuttal declaration and he explains that he told counsel twice first of all he said you know that he wouldn't say the name but then the guy died and then he did go to counseling to tell him exactly who it was and that happened a few weeks after june of affidavit is so bizarre that it that it's that it's simply incredible and every reasonable jurist would so find it then ok they can make that great that determination but if you look at newness and mannix that's not what they're talking about they're talking about when you have a fact which if true would merit relief and there's no pound or declarations back and forth it's not like counsel came in here and said that's not true that you have to have a hearing or if the fact is determined it's not a fact it's a title of deference i mean you may be right but they may be  decide that you personally believe that as a federal judge that you don't buy the declarations but we're talking in over review for that kind of a finding and it's important just to look at the difference between them because what the what the the reasons for those and one i'm saying is you you you you have you know review for all that new stuff and you also have to know where were you when the when the initial state court findings were many traced upon improper credibility and it's not a fact it's entitle to deference and it's certainly not entitled to a presumption of correctness and that's the point i want to make because if you look at all these planes before i'm done let me just list what the five claims are i may be coming to the end of my time here but at first one staff's reality how do i that's the problem with think so i can one didn't show the other person committed the offense that's what we've been talking about here third one that there was a similar b m w in the neighborhood that was running and that looked exactly like this one and then the next one is that he didn't attain the form consent of the client not to testify you have to tell the client that even if i have tactical reasons for you not to testify your your right to testify trance that and he never told them that a statute it's the california supreme court's pronouncements on haiti's corpus that the statutes don't address this what the california supreme court decisions do and they're all in the briefs and it's quite clear and that is that under the california supreme court procedure which is set out in cases like america you know the statutes say nothing about this so they lay it out and they say all right here's what we do here's how we handle haziest and the basic principle is if there is a fact stated which if true would grant relief we either have to have a hearing where we have to have sufficient evidence and you know that makes that that that factor untrue and then the final issue was the failure to timely present all this on the new trial motion you know the court cannot just say well i don't believe the declaration well your honor i would say that that's the case but it doesn't really matter in this case because there are facts that controvert the defendant's declaration for example the defendant declares i was never have this information it's not a pleading issue he sank i didn't your honor this is newly discovered because i didn't have this information you know also have to prove that the new information could not have been discovered with reasonable diligence counsel mr russell made reference to tiller versus maddox and unfortunately i don't have that case that apparently i still haven't gotten the twenty three on it but what is your interpretation of that case in light of the representations that we've heard from m that that is not entitled to a presumption of correctness when i apply that to this case well in this case though this wasn't the defendant had an opportunity presented allegations he did so in a number of declarations but the significant feel and this is not a situation where there's a credibility finding just based on i don't believe this defendant although i believe that under federal law and under state law that's perfectly permissible in this case there was basically the this witness testified that stated in her declaration some two years later now she remembers the specific times and specific locations on that evening and yet two years earlier you were granted a new trial and she testified at the second trial the fact that she says she's given concrete testimony one more question if the court of appeal can do this during the affidavit as credible i think that it's presumptively correct for the for the state court to determine that a declaration from the defendant is serving inherently incredible contradiction to the other evidence and i think that there are testifying but there's nothing in this case and that you're right not to testify at the end of the government's teached not a few months before it goes to trial a lot of people decide not to testify and they change their mind after they hear the government's case  believe believe me i would have testified but my attorney told me not to state court looked at that evidence and found that that was credible and indeed more credible than the subsequent a testify is not sufficient the client has to be told he has the right to testify i'm recommending that you not but it's your it's your life and not mine that letter goes back to the whole water under the race the fact that he said he tested he said i believe me i wanted to testify but i was advised not to do so and therefore i didn't do it the other thing is wrong and there's absolutely nothing in this in this record until it gets to the court of appeal that courts determination and i think that indeed is entitled to a presumption court of appeal working backwards judge you're right on i mean the fifth amendment right is the right to know that you have the right to testify over the objection of count was absolutely nothing in this in this record to contravene that on the  the prosecutor stepping up in court and saying gee i don't think this is a three strikes case so i'm going to offer this guy fourteen years i mean that's a heck of a corroboration i mean that shows just what he's saying i've heard the prosecutor offered him a gift and because counsel didn't know that it wasn't a three strikes case he didn't jump on it that's what you have and that's the only corroborated in the record this is not just somebody saying this without corroboration that that's right there in the record and there's other corroboration from a few weeks later i got a call from work out and that's this guy who was incarcerated in san francisco jail on other charges was able to communicate me he told me someone had smoked chicken bones chicken bone got killed and that knowledge praise me of my promise to give chicken bone t years that i told mr nikko to come to see me right away he i told him all the details of chicken bones confession he told him and he told me before the trial now why he didn't bring that up at that at the superior court which is the first fortune's judge said in the super thank you counsel thank you just argued will be submitted for decision and the court will