least the court mr garcia was found guilty by accountability of murder aggravated kidnapping and robbery of margaret anderson in one thousand nine hundred two the state collected a lot of physical evidence from the scene which was tested by the  discredited pamela fish in one nine hundred ninety two based on that inconclusive evidence and based on statements attributed to mr garcia from the police and from rosie central on mr garcia was convicted he now seeks an eviden hearing church to prove first that pamela fish tested that evidence she reported her findings in accurately second the trail council ineffectively stipulated to those inconclusive findings five years later third that a proper testing the test for new evidence would be as a blakely to change the outcome i'm a child and we argued that it would be because this was inconclusive findings and we don't know what the test would show but at the greatest  testing could show that he was there it could also show the presence of kirk and another individual if that were the case that would conflict with garcia statements and that would also be a different trail even if it just showed her alone it would still change be likely to change the outcome because the state had kurt my client didn't know garcia there from beginning to end and there was so much physical evidence collected the scene was so gruesome anyone who was at that scene the a should be recorded it's a much different case for him to say this t n a all of this evidence was tested my d n a was not there therefore my statement as i've always maintained to be false this is a lot of speculation and your argument you and put it someplace online you just drop the whole issue of the fish perjury if that's what it was but as i understand what has this testified to was she had a protocol and she followed the protocol and she arrived at a point where the protocol said if you don't find this you don't go further that's what she did the same thing that analysts testif produced they showed that she was aware that he was not the source of semen even though she said that he was so it's important to look at them in any case specifically in this case to find out what they actually showed and  collected from anderson these were the identical findings that she had made in other cases there's enough of this stansell showing since garcia also contends that a proper testing would have proven his innocence that he should be able to pursue that claim now those two the prejudice is to your client to do that where the testing is done on a remain as part of our case or where the testing the motion is presented before the judge just on its own seems to be the same result would a pain you're going to get the retesting i think it would be different results just because we have we need more than just the testing we need to know what kim fishes notes where in order to address whether she gave false testimony in this case we also have these other claims about trail counsel being ineffective and stipulating to those findings so we need to have one hearing to address a number of things we need to call defense counsel petition are preserved in some way and if they were in order to actually get the d n a testing then that would be a result that we would be sufficient with we want we want the d n a testing to occur we want hearing on these three claims to make sure they're  they talk about well yes this is a be a good motion a good request under one sixteen three but we don't really have one sixteen three yet so we're going to we're going to send it back as part of this post supposed conviction petition is that what you are getting too otherwise i don't see any differences and i i think to address the difference because i'll just claims here like the petitioners and sherman johnson who are seeking testing to prove their it because especially mr garcia requested his post conviction counsel to filed this motion telling him it will support my claims mr garcia even sent a letter to the court asking for different counsel because post conviction counsel had not responded to his cl if you've made it to that stage any reasonable attorney would but would obtain that evidence to support his client so it would go back to the second stage with the workers for post conviction counsel to seek that motion to get the testing that's necessary for the claims that have post conviction counsel has a duty to obtain the evidence and in the petition necessary to advance that claims so clearly it wasn't reasonable the case is that the second stage it be proper certainly proper to remain back to fully develop these claims at the file one sixteen three motion that would be ok we just don't want to lose the benefit of the claims that he's raised because he has made substantial showings he's preserved these he's been pursuing these claims since one nine hundred ninety nine and they've kind of been languishing in the court so as support that claim that does falling within counsels judy chu adequately bring the petitioners claims to the court he needs to make sure for example that the case is not be dismissed for lack of evidence that is  claim isn't regarding her testimony as in here he also specifically claims the trial counsel is ineffective so postcondition counsel not only did not obtain the evidence to support that he did not even alert the court took him fishing in this case it up so the requirements you have to get a response or ensure reasonable assistance and if this court believes that there is not sufficient evidence to resolve whether this petition should have concert have a cheery hearing because of the lack of evidence that it was counsel students to obtain that somewhat complicated in criminal cases it's very simple fundamental fairness trumps race should occur if the appellate court decision was clearly wrong and if there's another compelling interest she she weren't reconsideration you are entitled to relax the doctrine here you maintain that the decision was clearly run trial counsel failed she will lurch mr garcia history that she had admitted to lying at this trial she was the linchpin of the case against him she was crucial to his defense where he said he only signed a statement when the police did not listen to his claims that she was lying and in addition the other compelling interest as people held was that this plane was raised and effectively pro se when  undermine confidence in the outcome of the trial and it does in this case trial counsel did not tell mr garcia's jury that she had lied about all she the minute she lying about everything the night before in the morning when margaret anderson was killed misunderstanding from the appellate court they did have the record they did not have a full legal argument on how miss entrance testimony was just heard of this case it was she was the reason why mr garcia was the rest of arrested she was the only witness to accuse him at trial the statement that she claimed that mr garcia made to her talked about this bracelet he was telling me how he got this bracelet but she had just admitted that her testimony about ever seen him with a bracelet was false you put her it was never given th information and the new issue is was a poet council and effective and not raising this issue on behalf of mr garcia and had this been developed with full legal claim it is likely that it would have been different case suspicion is not evidence all of the questions defendant raises on this issue can be resolved in the simplest way send the case back then and to file a motion under one sixteen three for testing of all of the evidence to determine whether or not either under the new technology or the same tests that were done for whether or not there is either evidence a limited remained on one motion and if the motion it is is granted because it's something to litigate if the motion is granted the testing would take place and the results then would either be the basis of a success way you want to handle it it's in the two years i've been here retaining jurisdiction is hardly the way to go either well then i would think that the law would then would require that this court addressed all of the issues and i this issue a court would have to find it and it does not need a substantial showing it would affirm the dismissal of the p c petition and then defend it would still have the right to go back and file a one sixteen three motion so it really doesn't matter the same thing is going to happen one way or the other indeed on the issue of the effective assistance of post conviction counsel that you know for failing to file or to proceed on the d n a issue the it's an issue discord doesn't need to address because the remedy is still going to have to be tested under one sixteen three so you with you on the defense at least agree on the one point that further testing is required  court wants to whatever the testing the court can do then if this court wants to send it back for the filing of a petition to support can do that if this court wants to affirm that the judge the situation this court can do that and one sixteen three remains as a a remedy for the defendant to pursue so it all comes back i have a warning answer fits all questions here one sixteen three i mean that's really what procedurally has to be done that's what the case law indicates it eight stage three evidentiary hearing is knacked to be done in order to security evidence that is required to pass a case from sta to stage three the the legislature has specifically allowed for this procedure of a one sixteen three motion to for the defend it to acquire the evidence that he would not ordinarily be able quire it medically feet evidence is in the possession of the stay and the chain of custody of course would it that most circumstances would be but he has the right to ask that the says evidence be tested and if the evidence is favorable to the state he loses if the evidence is favorable to him in a way that establishes his his actual innocence horse and then there's the claim that defense defendant claims he should it should have been brought out that he was arrested on february thirteenth not in february fourteenth as the police testified to we don't know  know that that's a fact that might just be a typo we just don't know why that's significant so in light of defendant's defense counsel a professional opinion not bring those objections he has complied possibly i don't know that that's basis for reversal i don't know that any disparaging remark on the part of state's attorney really is as a substitute consideration as to council's performance counsel has the case that he has you can't make something out of nothing and you know one of the things that the state's attorney was complaining about was that this was a case that had languished in the circuit court for many years and questions i mean you know that most of it dealt with complaints about his trial lawyer not winning the case  i don't think it has any relevance whatsoever pointed to go through the petition to amend the petition supreme daniel garcia's feigns adequately to the court that is also a rule of six fifty one see it was not complied with here  of course you have to reach this issue now before waiting to see what one sixteen shows counsel was required to obtain the evidence that was necessary to adequately present the claims it's not in your garcia's responsibility to bring that there was a chain of custody at the time of trial and as i've explained no matter which way the evidence shows which way the d n a testing comes out it would materially change this trial because it's the difference between defending yourself against inconclusive stated  for discovery can allow all of this evidence to come in and this is everything can be addressed at one point with all of the evidence necessary all of the witnesses necessary and one decision where it can remain end to the second stage with orders to instruct counsel to obtain that testing or to file a motion for that testing since the planes appear in this petition this court should not dismiss this petition it should ensure that these claims are resolved and therefore since these claims if they're proven to be true would result in relief and since the evidence garcia request is just the opportunity to prove those claims we requested this court help them do so thank you so you both left th