remained the hearing was held during that hearing dennis explained his allegations of ineffective assistance of counsel he told the court that his attorney failed to call kony should cox an alibi witness who could have placed dennis at her home a couple miles away from the shooting scene at the time that the shooting was taking place defense counsel didn't dispute dennis's version of cox's proposed testimony those told the court that that night he simply wasn't there those also told the court the defense counsel should have objected to hearsay testimony provided by quote green testimony that implicated dennis in the shooting counsel didn't object to that testimony when they were discussing that portion of dennis's argument counsel emitted that if he didn't object to hearsay testimony it was merely because he got caught up in the midst of trial and not for any other reason the not for the crank acquittal proceedings attorney was present or the proceedings the state was there i believe the states and that they weren't going to participate because they're not supposed they're not supposed to that's a good read is a good reason  but this was a preliminary inquiry where dennis was just required to meet the press will requirements the preliminary critical requirements the court used the wrong standard here it this is argued that based on the evidence or the statements that he made during that franklin pari and the court's exchange with the attorney who represented dennis sterling that the trial proceedings  talk to the witnesses and subpoena the witnesses so they can have a full blown hearing pursuant to strickland so the court which by the way the judge in this case was not the judge that heard the trial in this case can have a full understanding of what happened and how  back for a the appointment of counsel who can represent then us if this court would remember from the direct appeal proceedings this was a case where the witnesses testified that two men approached  worked off of the time when the police received the first shots fired call which was around eleven thirty four that night at eleven forty eight dennis was stopped for a traffic infraction a couple miles away from where the shooting took place wearing a or weapons or any evidence tying him to the offense here have pointed out has pointed out that there was a witness that he told his attorney because he should cops who owned the jeep that this was found driving when he was stop according to dallas miss cox would testify that dennis was at her house at eleven thirty a couple miles from the scene of the shooting and obviously couldn't have anything to do with the shooting itself defense counsel didn't call that witness instead the fence counsel said well i didn't he left her house there's no way that she could have established any sort of alibi for dan as she had no idea where he was in eleven thirty she didn't even know if he was really cater and here we have can you should cox a witness who again once that is explained miss cox's testimony defense counsel can disagree with what she would say he didn't say no that's not what she told me he didn't say that there was any reason not to collar except you want to rely on the southern witness who testimony was the odd thing about mariel is he was enjoying shoulders home and there were people coming and going from the house no one never saw the burial there now this court stated that that didn't mean that the mira wasn't necessarily there of the record establishes he was hiding out for a murderer himself but he was wanted by the police so somebody that's hiding out for murder doesn't make himself readily known to people who are coming and going also when the shooting started to mariel said that he hit the ground crawled out of the rear exit of the house so the people running into the house from the shooting may not have seen him but what this court didn't know at the time of direct appeal what i didn't know and what the jury certainly didn't know there was that george shoulder the owner of the house or the at least  person that lived there was willing to say that the meriel was not in the house on the night of the shooting obviously if he's not there can identify dennis as one of the people pulling the trigger and shooting all of these people murders who made some statements about any cunningham would do how they wanted revenge on the cunningham family that sort of thing he was saying that they were going to go out and harm someone in the cunningham defense counsel acknowledge that he should have objected to that and didn't the only reason was because he was caught up in the midst of trial and with horror when it was ruling on this is critical player use noted of trial strategy but if it is an issue of the allegation showing possible not blacked you counsel should be appointed now i'm not really good with the line drawing just in defense counsel not hauling an alibi witness who can testify that the defendant doesn't at the scene of the shooting that he was at her house at the time machine was taken place a couple miles from the scene of the have a witness who defense counsel decided not to call who would testify that the state's she witness the only witness to identify the defendant actually as one of the shooters one of them in the house at the time and where we had he hearsay evidence that was admitted without objection that implicated venison being involved in a discussion of these men who were going out looking to i believe called green so they were looking to  start a war back to those issues are great examples of what i would be impossible whacked i think they even go further than that but certainly for our purposes and for the analysis a set it sometimes leads to more gray than than it should and when dennis has the case that he does here with what seem to be specific examples of evidence any one of which could have resulted in a completely different verdict especially given the the weakness of the state's overall evidence regarding businesses involvement the shooting here in this case i think it is a prime example of a possible know what if a crank  because the body of his soul that's developed around critical claims talks about a complete absence of merit and or an absence of merit it's a very cut and dry sort of analysis case law doesn't talk about marriage it talks about credit card strictly doesn't talk about marriage it talks about prejudice two different words used essentially in the same analysis they always have to mean something because if you look all shows you can fact i believe it shows you can't do it incredible kind of the grandfather of all of this it said the defendant will be appointed an attorney who then can establish her attempt to establish whether merit but you say we shouldn't be looking at the possible i don't personally i don't think so at at this point anyway it with the reasons for that you know we are dealing with a pro se defendant incarcerated trying to simply make these claims clear enough for the course of the court understands what the nature of the claims that are if i give the court an example i don't know if it'll help or not but if this was a defendant who filed a pro se but you should post conviction really it's sent to the court and within ninety days the court dismisses it and says i'm dismissing this petition because the defendant has failed to plead a substantial constitutional violation with no mention of the just standard at all we would be asking well since the quality found that there is no substantial constitutional violation pled there's really nothing wrong with a dismissal or the reason we don't say that is because it's not the standard that applies at this stage at that stage the defendant just has to prove a jest and here when dennis goes  found that as far as the witnesses were not called that that was a matter of trial strategy that counsel got up and said i was not told about this one particular witness and that the defense says it should have called i never knew about him at all and with respect to the witness that's what was said that the marriage was not my house he says i did not call him because he give person said did just making a passing reference to strickland is not necessarily fatal to whether there was a correct slightly different meetings depending on its context it could have a different meaning in a civil case where it's a leak it's a loser but it's a legally defensible are here we're having him say and if so that attorney should be appointed to represent you and you will go through the evidence you're hearing and your family most of the time you're going to lose i think the problem with this is the basically that there was a discussion involving the fed and which these guys were planning an attack d s or the i declare going to war this is not hearsay these are the  any objection would have failed so there could be no you're pointing out the legal reasons why it's not hearsay i'm just saying that bennett pro se defendant is left on his own to complain about why did that come in entirely or the fed ever brings the allegations to him and we have to go back for this the judge never knew about them and should so we have here a judge trying his best to follow christ or if in an odd way by appointing kelsey first to explain the whole situation to defend it and then making the determination that the defense allegations go to strategy the case of a nine foot rabbit he then visible invisible you know that that's one thing but as we get closer to america sort of argument where that line is drawn becomes critically i and that's right in this case i don't want to draw a line other than to say we're talking about our by testimony of a witness who wasn't called in a case where someone was killed and three people were shot we're talking about  a gentleman who can testify based on a piece of writing that was provided to the defense prior to trial that the state's key witness resin the house on the night of the shooting couldn't identify the defendant these portion of it and there's nothing in there about trial strategy my recollection is what the court said was it appears the counsel made some mistakes however pursuant to the second problem strickland i find the defendant can establish prejudice and that's what sets this because the defendant essentially said well you mentioned strickland during a critical inquiry and that went too far this is the complete opposite of a case of what we have here if you look at what the court said here the analysis is strictly versus  strickland but it also had a fairly significant analysis of the merits of the defendant's case you know were writing not necessarily solely on strickland but on the factual scenario that showed the council didn't  see any possible that will act you know i think everything he did was appropriate that may very well be a different case that's not the case that we have in front of us here we have the judge who undoubtedly the record is clear