the star appleton got out of their car with the gun mr a screw uncomfortable called his nephew to the car and their hard drive over the curb in order to get away with mr estes shooting at them as they left now after this confrontation mr wright stroke home and the state gun in order to go looking for them to retaliate the defense theory was that mr wright's was driving his nephew in this was home and that it shot out of a belief in its need for self defense even if that belief was unreasonable mystery's was ultimately convicted you specific evidence to support off the fans among other things now specific to this appeal he felt the defense counsel failing to contact and interview ms woods who was in the current witness and miss andrew stop at home after the first confrontation and that this would have undercut the state's theory that he had left his house specifically seeking retaliation after going home to get a con now the problem with the amended petition and is that an ineffective assistance claim based on the failure to investigate or call witness requires an affidavit from the witness in question and the issue that we've raised in this case is whether post convention counsel could have provided reasonable assistance as required by the statute and rule six if you want to see two statements somewhere in the record which explained why there might not be affidavit in the petition itself you have counsel stating that affidavits might necessary due to the nature of the points raised when you have a hearing counsel arguing that there needs to be an evidentiary hearing to flush out off records or for the claim that trial counsel was ineffective but the problem is of the nature of the claim and the exploration of offered support are things that needed to happen to some extent during the second stage in order to even the record for counsel statements or actions indicate that he didn't realize what was required at the second stage and in that way perhaps to comply or the role and that's what we have in this case it appears the counsel was mistaken in believing that it was enough at this petition can only be weakened by detaching what support it had included at the cross a stage and it cannot be reasonable for an attorney to amend the petition when the amendment specifically guarantee that that petition will not be able to go forward to a certain extent the state speculates that counsel may have believed that the underlying titian was without merit and that's why there were further amendments made to this issue of whether or not to call witnesses but this doesn't absolve counsel the studio to under rule sixty one  indeed the supreme court has made clear even when you believe you're representing america's titian you must comply with the rule and the court has further laid out the process which should be followed when you believe you're representing americans for test and this process make sure that the attorneys presenting a claim to the hearing or while at the same time making amendments that undermine your client's claims rather than speculate this court can resolve this case based on the record that is presented which is that you have a titian putting forward this claim in effect of meth based on the failure to investigate present these witness says you have at least one affidavit supporting one of the facts which counsel put into the amended to shannon but then you have an amended petition that claim but takes away all of the supporting documentation but the only explanation being that they weren't needed for the due to the points raised and they weren't needed because off record evidence we develop that the evidence you're hearing in such a situation and he certificate assistance of counsel by post conviction at a time now as our supreme court has recently noted that because trial counsel and post conviction counsel serve different roles post conviction petitioner has already been stripped of the presumption of innocence and because the right post conviction of counsel is not constitutionally required the reasonable level of assistance required  on the other hand it's sell it goes on to say that you can you've written this kind of a general guide and of course we all know the district has two parts whether the assistance  as reasonable and whether there was prejudice not a state posits that under kotto which is the supreme court case that i just cited since we apply a general framework of strickland only with an even lower standard then if it is if the record reflects that even if you take everything that the senate says is true then the defendant was if a trial attorney did something wrong and there's no prejudice there should be no  question before this court is if it was wrong for post town for the state had her on their witness list from the very beginning and never had any address any more then you think lois defense counsel put miss woods on her counsel made a concerted effort to find this words and was unsuccessful so i think that's reason number one why miss that this affidavit is not in there but i think an even more important reason is that this word with the witness first and then she was using cocaine and i question her she remembers the shooting at nappy street the first shooting which by the way good thing about the bullets and the defense for our defense counsel just said shots were fired at that truck before it even left the house so who cares whether there's but we're going to ask after the second attack down and as i said she just had been using cocaine she laid down on the back seat of the truck and those dogs she jumped up when the gun start gunshots started only to see the defendant finally firing at the red cadillac and when she was asked if anyone in the red car prior to she was asked if anyone in the red car fired the defendant miss wood said to be honest i don't review she would have used her and a posting face to counsel had found her and heard what she had to say you would not want to an affidavit from her and that all is contingent upon finding a woman that no one's been able to find for years and as oh you know i wanted to get the bad guy drug dealers out of the area i wanted this used to be a drug house and i don't want to be a drug house anymore so so that's why i didn't like these guys and so the last thing in the world he wants is  someone coming in and saying that he's cutting we don't know when he gets the car call and then he puts his dope and it's going in his pocket and we leave but i say and so in between the first shooting the second shooting it is a fact that might indicate that he was angry but when you look at all the other things that happened down the other car and his nephew i believe is the one that said that the senate had a gun in his lap and said i'm going to kill those motherfuckers and he was mad and he was dead serious so that's the testimony continued to cruise the streets for about a half an hour allegedly to take his nephew and girlfriend home but when he if you're looking at why these affidavits didn't the lack of affidavits didn't hurt anything then there's no doubt that these affidavits could there you'd have to ask they could not prejudice a few factual matters that have come up and i think in the brief and thereby briefly go through that i think there's a lot of unknowns about whether miss woods was in fact a missing witness and in the prostate tissue you have mr  including on the loads that showed you was a continued contact with her so i think there is a real factual question about whether or not counselor looked into her and the current record does not rebut the idea that she wasn't looked for because two of the men who did  s but one of the things i think we do know from the certificate is that counsel affirm that he made on necessary and that's present the claims but then one of the amendments was to keep the claim about not calling miss andrew hearing court but then didn't keep any of the support including the support that we knew was already available because the prostate tissue i think that's what it counsel didn't understand that those after the of it had to be found say for certain that post conviction counsel has understood and apply these three duties then we're not going to dig deeper into the case for privacy we're going to go and just make sure that counsel doesn't fact give those duties and importantly the  talking about and there is that you need to shape the claims into legally proper form is the third doing in here we have counsel keeping the claim the trial counsel is in effect there for not investigating and putting forward testimony from these witnesses but then specifically not including the affidavit from one of the named witnesses which had the very fact counsel was putting forward in the amended petition and i think there you see that there's some sort of problem what counsel thinks that duty is at the second  and he explains that the hearing when he says we need an evidentiary hearing to explore these record facts when he needed to do it at that second stage or at least move that affidavit from t