second that the matter should have been extended to an evidentiary hearing which was required because the defendant was able to substantially demonstrate that he was denied the effect of assistance of counsel for coun failure to either call the defendant's witness her dependence father as an alibi witness or to even contact his father to investigate the claim that he could provide an alibi within the brain i listed the issues  order for purposes of this argument my intent is to reverse the ip the order of the issues he burst issue is fairly narrow and i think easily settled the second issue is more complicated and ball and given my tendency toward the boss of the hypo it was best to start with one rather than risk running out of time if i do run out of time to stand on if time remains i will address that issue and certainly i hope it goes without saying that witness there is an open question that cannot be resolved at the second stage as to whether that is simply a matter of competence or whether it is a strategic decision and even if it is a strategic decision a third state eviden is required to determine whether the strategy was sound the failure to call a known exculpatory witness is a classic example of ineffective assistance of counsel you can't say that the decision was strategic because it's not an unknown history whether the counsel even talked to the defendant's op or for this reason the circuit court erred when it surmise that counsel had decided to call on the father would not be a worthwhile endeavor because the jury might automatically assume that the father was going to vote for his son whether or not it was coke or but such a decision can't be made in the absence of interviewing the bobbin or investigating claim and any other fashion it simply is not something that can be claimed as a matter of law or this court or in the circuit court to have said well this would be a good reason for not calling the hypothesized by the circuit court is unsupported by the evidence it simply can't be said that it was strategy as a matter of law and for that i rely upon people or says a secondly determine whether or not it was a street teacher decision or merely incompetence and even good counsel had investigated then the question is whether or not this is a sound strategic decision there are certainly instances within the case on her side and within the briefs indicate that there are times when family members are not going to be good witnesses but generally it's not because they're family members but because there was some other aspect of their testimony that was going to be detrimental to the defendant in some instances as in lacy cited by both defendant and the state it was a matter of the witnesses proposed testimony being clearly contradicted is nothing within the record that rebuts the proposed testimony that would have been given by the father he said that his son was with him until that they were playing video games until four thirty in the morning that then they went to bed when the father left for work at seven am his son was still there the trial court in looking at this affidavit mis read the affidavit and misapplied the information the court said well it said that he left it for him but that is clearly not what the empty set is more assuming for the sake of argument that he had said that he left the four o'clock the police were called regarding the shooting at two forty five in the morning so he the fact that the not mean that he's disqualified as a witness if anything it's a more significant disqualification as a witness but it's still allowed by the law where the witness is as was in this case is an accomplice wit because the accomplice witness has an obvious and precise and in this case we see this we've heard deal or his as a there's no reason to say that pairing up these two witnesses one against the other is necessarily not going to be a benefit to the defendant in fact it has been stated specifically i believe with and aid that will do have a an alibi witness prejudice is almost pres it's assumed that an alibi witness particularly when going up against the witness whose veracity is as incredible as in the instant case with orlando macdonald when there is that much of the question it can almost be automatically assumed that having an alibi witness is going to be a bad and for that reason prejudice is considered to be substantiated have the second stage requiring asin on to the third stage at that point maybe the credibility comes into question and at that stage certainly credibility can be judged by the prior back but it can't be judged at this stage of things because it lies outside of the record and therefore credibility in fact finding cannot occur at the second stage again prejudice is already been established and i believe the direct quote is from cleveland actually that says a program of sixty it seems clear the putting on ho he has definitely shown that the competence of counsel and whether the defendant was provided his right to the effect of this is of counsel is certainly been called into question the defendant should have had this claims within the petition airport one passes they all pass on to the next stage rivera then focused on what the proper remedy was but in rivera what it happened was that the issues that incorporated them into the motion that he was required to file and he stayed responded while the motion to dismiss including those issues a hearing was held and at the end of the hearing those issues were dismissed however in case there was a question in the appellate courts mind as to whether the defendant had even raised that issue in the petition at all and certainly it wasn't this heard at the second to bolster the primary argument but it wasn't even fair to the court that there should have been raised much less abandon here there was no abandonment of the ark the trial court said these issues are foreclosed i'm dismissing them decision was the result of incompetence or whether was sound that this was not going to be helpful information and probably not credible because of the defendant is being related to the  record and here you have to take the dependents every day that is true unless it is rebutted by the record i believe that  just invision right now it states attorneys say we don't get to choose our witness because you know the defendant has pointed out in this case your honor that we had these witnesses whose testimony is difficult to believe they are drug addicts or they have criminal records you can't hold that against us we get witnesses that come to us and i always find myself in the same position and i can't imagine the state having wrestled with all with the question of whether to bring  was what they had and in this case the only thing that the defendant should have been use which was the testimony of the spot is going to have wars and is going to have difficulties but that doesn't mean that this is validated as a credible there and when is the only there that you met and when it isn't something that is affirmatively harmful to you when refuted by the record counsel hasn't have slow duty to pursue and here we don't even know whether this was a decision that he may because of the fathers of the mill your relationship that's what the courts are modest but course not allowed to do that at that stick at the second stage you can't make fact finding you can't make credibility determinations and it was for the courts to do so and that's separate from the error of saying that well he had good reasons not do it given back that were the reason i submit that it was still bad strategy and for that reason there should go for a third sta here the notion that this is the type of contradiction that should be applied by that or i believe is also wrong to say that it's that it's already a matter of record that this was a something outside of the record cannot be said to not have had an impact on the defendant's case it wasn't presented had this been presented to the jury it likely would have changed the outcome and try and prevent reason council was negligent in his duties and derelict for one not talking to the father and two not calling the father as a witness when it was the only option  kind of contradiction that we're dealing with here contradictions with anything affidavit that are presented with in the record refutable it's a question of fact that should be submitted to the jury as to whether total mental macdonald was telling the truth or whether the father has told her it's not thank you that's not the kind of contradiction that is contemplated by the post conviction which again does not consider those matters which are outside of the record this is the porno for entertaining those types of arguments is through post conviction is the whole point of th if there are no further questions