not the person who shot the victim in this case castle and they also say in that sort affidavit that counsel failed to follow up with them and if you then before trial and present their testimony to the jury now we know given given that your argument it seems to me reading the declaration from as a million i don't know how to say the name exactly it seemed like that counsel's investigator did talk to us camilla correct your honor she did communicate and it seems to me that counsel's investigator did talk to rubio correct so then counsel did talk to these two potential witnesses with the investigator right i don't believe now that declaration is not clear how far can so talk to them but it is clear well that what it's clear is that counsel's investigator talked to these people but he didn't ever follow the correct order that she will say and i think that's it the reason i tried to get to that is then it seems to me that counsel knew what as said through his investigator but then probably made a strategic decision not to call them not necessarily your honor because we're number one we know from the  the investigative leads told these witnesses you know this is the important testimony you should come and testify at trial well but i know what the best gator is not the one who decides what to do correct or i'm just trying to make sure i have the facts as they are because i mean one thing would be nobody talked to us camilla and no one talked to rubio no one have had any idea what they said but when the investigator has talked with them then at that point the record isn't clear why counsel didn't call and generally at that point are precedented i'm only going through it because i'm trying to make for a presidential decision is that it's a strategic decision of counsel if he knows what the situation is well first of all we're assuming respectfully  affidavit i can tell you personally like this i can tell you what i've done and nothing's been forthcoming well the problem i guess i have is when we have gentry on the record and i' it seems to me that in this particular case your biggest problem and i'm only presenting it to you because i've got to make this decision first of all i've got an underlying co which says this is not a problem i have to give deference to that court and then i have to give deference to counsel on a strategic decision so that makes a double difference and so i'm trying to make sure that i penalty case so therefore it would have seemed to me that we would have leaned over more backwards for the gentry decision and we would the riley decision and yet we said we can reject the  assistance claim and here's what i write here's what i i quote based on counsel's failure to offer evidence where the petitioner failed to provide declaration or affidavit from counsel addressing the reason counsel did not provide such evidence seems to go right to our decision not necessarily what i don't think he has any bearing whatsoever on this court and this case at all nothing no bearing whatsoever and i tell you why number one in gentry the people who have firsthand knowledge of the issue there they never said anything notable in fact he the expert didn't provide any declaration supporting petitions claims meanwhile the petition had thirty other claims all of which were addressed by cancer but this one in particular they didn't particular the assumption was that they have a good case now here's another difference here had gotten i wish we had i wish we had a declaration from from council it would have been very useful one way or the other absolutely helping to resolve this but let's suppose that council the council had not only talked as investigator but he went back and talked to ask a million to rub is that counsel would have called us a million and rubio to come up and testify that espinosa was not the only shooter correct or no way that mr espinosa had told him that he was the only shooter that he was prepared to go to trial after that there is nothing that says we saw mr are you suggesting you would put them on there to show that the gun actually was wrestled from from the stress and also know there was a second shooter with a second gun second got a revolver for instance what you don't have where there were you know five people mr spano this in the shooting you know i think everybody there we're talking about forty to fifty people out there we're talking about every one of these witnesses who testified for the prosecution and by the way you honor and you know the decoration the lack of decoration here is one of the reasons we were asking but the lack of decoration really goes to the question of your effective assistance of counsel i goes to the first to the first prong and i'm i'm willing to assume that for purposes of this case and then go on to the question of prejudice just as you know how would it have changed this and what obligations the lawyer have if he thinks his client is telling the truth to put witnesses on the stand who are going to contradict his client johnson case you know there was a case that came down investigates the alibis so what he does defending is understand perjury isn't self and says look i wasn't at the scene of the rape i was with my grandma and my girlfriend you know what this court says that the ineffective sit down with there was ineffective assistance for two reasons number one if counsel would have interviewed the mother or the grandmother and the girlfriend he would have learned that there was no alibi so he would have told his client that you shouldn't go up there and testify falsely that's a little that's a little different from this from this case he has no reason not to believe his client his client's actually very very specific in his in his testimony and there's plenty of evidence that he had the gun and was shooting you want to and i mean and there's all kinds of witnesses to fact there's no question that has been also had a gun there is no question this but also was firing shots there's no question your theory is there might have been a second there might have been a second shooter and had and had counsel interview them he might have brought in a different a different theory in addition to  purposes and then i went and john i did my own investigation talk to counsel and i can represent to the court that there is some issues here there is some question here and i don't want to get into it because it's not part of the record but there is a question and i wasn't able to get much answers you know so i think that the very least your honor one when you send someone away for the rest of their life  correctly characterize what the affidavit said and we can treat them as though they are true and even if we do treat them as of the urge to your honor i don't believe that petitioners demonstrated either deficient performance or before the district court yes it's my tell me why there's not official performance if you can see with my exchange i was willing to assume that there was sufficient performance i want to get to prejudice but you tell me there's no deficient performance tell me why i don't believe there is wrong or as just as that point on his questioning of petition and he spoke to the investigator proctor and in fact more than that my reading of this is that asking me i also spoke with in addition to the attorney the attorney's investigator so i far from failing to investigate it appears to me based on these affidavits that the attorney knew what these witnesses would have said i understood it we're assuming that well your honor the affidavits tell us that they spoke with the but it's quite correct that they that they wanted to convey to the attorney i mean judge person asked to understand that there was in fact an investigator who talk on and that the attorney talked to two right that's my understanding or so i i agree i don't know that there's any indication that the attorney actually sent an investigator out subsequently to go contact these people and take a formal statement but it is my understanding from his affidavits that the information the facts contained in the affidavits were conveyed either to the attorney or to the attorneys investigator and where do you find that well judge sandy brought houses declar yes ok so this is the this is one this is one guy who doesn't fall into the category that you describe is not contacted and has a slightly different theory from everybody else i don't believe this is the second this is the second the support for the second shooter theory right so i don't believe that he's proactively contacted my understanding is that he speaks at the investigator and then subsequently leaves voice mails for the attorney but any of that even so i think we can safely say that the attorney's aware of what these people would have testified the declaration in front about three quarters of the way down starts on the end of the eighth line from the bottom victim and that i would testify to my and then i would testify to my testimony and whatever i was never contacted again then a few times and left assume deficient performance your honor i don't think the petitioners demonstrated prejudice if we assume that these people would would have come to trial and would have testified consistently with their affidavits i believe it actually would have hurt rather than helped petitioner of the petitioner fled the scene returned home with a firearm and then subsequently fled to mexico and was not apprehended till i think four years later when he returned to san diego so it would not have been feasible in this case to get g s r from the petition is there any ballistic them one from an automatic weapon and the reason i don't think that's likely is because her name to libya adds and it was one of the witnesses who testified and she said that the titian or was the only person with a gun on the scene and  you like me to yeah go ahead roger you're correct that i obviously it's difficult to prove a negative having said that the i think in combination with petitioners trial testimony that right he has the only gun he fires until he can't fire anymore there's no one else does i mean there was no i'm saying i saw a second shooter for sure that had their own gun even if a fair reading i think of the affidavit says there's a struggle for the for the weapon and i think where he is that and subsequently following this struggle there's another you know another shot gets fired which is problematic because it appears from petitioners testimony which to date he hasn't recanting that the last shot was fired before there i don't know that we know that i think the evidence was the petitioner was chasing the victim the victim was sort of hiding but it's my understanding that no one actually saw the victim was running away was running and was he struck by a bullet but that was the jury's finding or are they came back and made a true finding that the petitioner personally intentionally destroys the firearm causing great bodily harm so that was the jury's finding o think something to that effect no she did not in fact the prosecutor makes a very clear in his closing argument saying we don't you know one of the addison said the man with a gun and they state's theory here was that are two rivera was hiding behind a truck and there were three other people sitting around him at the time that he was shot none of them came to testify none of them evidence before the state court this was not in front of the state court all this stuff you've come up with thereafter if i go to shrink it says a federal court is not required to hold an evidentiary hearing when the state court