only question is whether this claim has an arguable basis in fact in law and here or there is no question that mr miller set forth a well supported claim that should survive first stage just assault specifically at mr miller's trial his defenses were that he shot at mr parks under the belief that mr parks was about to was a reaching down for a gun and about to shoot at him  based on the allegations we have in the petition my understanding was that he was listed as a potential witness by the defense but again the record doesn't really buy mr miller's allegations that in fact way i understand your honor i was trying to make an analogy to hodges just in so far as in that case there was there were three witnesses two of whom it was evident from the records specifically that they were witnesses at the allegation had pertaining to and in fact that only supreme court still sad well the record here shows that these people were actually witnesses at the time and the allegations that they could have presented to testimony to show that was essentially speculating i mean certainly competent counsel you would assume that if a witness is listed on an answer discovery has interviewed that witness however it can be assumed that incompetent coun has interviewed a witness fifth listed on a supplementary answer discovery which is i suppose the very point of mr miller's point where the second question is is the fact that this to boston affidavit says that he was not at the time willing to testify for the state mean that he would also be unwilling to testify for the defense again i think that's speculative from the record if anything if miller's identified objective sources that could corroborate his allegations specifically is the allegations are that at the time of trial he heard the same speaking with one of the prosecutors about the fact that she wanted the prosecutor to speak on her behalf to the judge in her pending case and mr miller's additional allegation that your fact he did that she did also mentally receive law since testimony was critical of the state's case based on the fact that she was the only witness in the car with rocks at the time of the shooting and so her testimony that he was on armed at the time and that he in fact had  and was not able to locate the disposition of the second hour of the post convention petition that was filed a month later based on this lack of information with all due respect for the defendants to press the strikes that the people did be written order that would have the s'posed of the entire entire two thousand and five appeal appeared in this record without any comment from defense and that order clearly stated it was  entire litigation and essentially that's what the people had won it initially in the two thousand and five appeal is to hold the defense to be obligation to support their arguments with with  documentation from the record below so the implications of that now would have been that indeed if the two thousand and five titian were ruled upon which is what  agreed order and your own yes assumptions and that legally you know we would be dealing with the success of the titian and while the people tonight insists today that we should go forward with th lead defense counsel with respect to the failure alleges failure to investigate did investigate willie past its potential as a defense witness where he did identify by him as a as a witness in the supplemental answer to discovery so i would strongly disagree with that characterization regarding the failure to call there is no guessing my counsel could not and would not call willy boston as a defense witness strategically bostons that the david clearly stated that he would not have to testify for the state due to threats and intimidation from parks over it's in family is that the david also imply the converse fear that this testimony for the defense that he saw someone take a gun from parks would demonstrate that parks was somehow complicit in this on that and they're fact they're biased and parks friends and family practical matter counsel could not have predict what will be boston would have ultimately said on the stand with respect to the analogy to hijacks this case is materially different from high just in these respects and had just there was no evidence that i just counsel knew of the existence of the three witnesses had just later wish to call and there was also no statement that the witnesses were threatened by or otherwise feared retaliation from either side in a case furthermore i just testified to hard facts showing that there were bullets flying from forward of him and the only person who wasn't in front of him was was the victim and then there were bullets flying from behind him from his own friends does the three witness testimony in  reasonable that prior to the shooting you know the victim was reaching down in this car for a gun to make that belief any more reasonable or believ only the gist of the marital right but the gist of the claim that we are speaking of is the claim of ineffective assistance of counsel and here we have an attorney who ate investigated the case and b made a strategic choice not presumption that counsel was an effective one strickland clearly states that strategic choices are immune from from ineffective assistance of counsel analysis i think would would would would do violence t decision as well so our position is that when it's ineffective assistance of counsel claim they'll because he has his showing his attempt to moving onto this lisa simpson petition or alleges that the state violated his due process rights by using her alleged perjured testimony allegedly perjured testimony claims that the conversation between sims and oppressed peter in fact place or any of the surrounding circumstances of their conversations so it's not even clear from his petition whether that conversation took place there was no date or time there case he did not even identify identify the case in which there was allegedly perceived a lenient sentence or what that sentence was in exchange for her testimony against him thus we maintain that the post in fiction petition was struck the trial court from addressing simms possible perjury at the very critical moment when it occurred at trial at the time it was most pertinent and could have been investigated and corrected then and there  my question as he was represented by the public defender is a mac right there is no evidence that he was at that point being represented by a public defender for an appellate state appellate and ram sorry so then if he apologize but there are in fact two boston's that are involved in the case and there is a under hijras is it your contention that our analysis should be that just because he's on the list we can't necessarily assume that he was interviewed absolutely or let me ask you this if that's true let's assume that your client's attorney in fact did not interview well the boston right is that proceed in effect per se in effect i would say under these circumstances that it's certainly arguably ineffective by virtue of the fact y that it's i'm contested that willie boston  i'm sorry in the us in the context well they've lost in this constant drip fed the failure because the allegation here is specifically a failure to to interview right that's true  i think interviewing is a part of what is within the ambit of investigation it's a smaller subset correct it is a smaller sub standard of investigation now that there were there was other forms of investigation that went he performed an adequate amount of investigation whether or not mr cheating decision that was an interview was and something to follow up on those are those are questions that can't be answer from this record and again the the mere fact that he is in fact listed as a potential defense witness doesn't actually were but the allegation in the petition that counsel potentially arguably was in a factor are there are still open questions on the record of why counsel alternately decided not to call willing to testify and again i think that those are second stage factual issues with respect to the question affidavit certainly possible but put the the standard for first station for substantiation sent have you presented the best evidence it's have you satisfied one twenty two dosh to and here where he's thing again i think that the the allegations the petition need to be read in conjunction with the record here are and the fact is that the fact that defense counsel we have  certainly but i think under collins looking at the record coupled with his attempts to obtain addition no objective evidence to corroborate more than satisfies the first stage it's also your time as far