the issue that's been raised and it's before this court which is whether this you know once counsel could have been effective when he made no investigation of the state's d n a report on the test conducted by the state which found none of his sperm none of his non sperm d n a and yet more so it makes me puzzled given that very very good development in terms of the evidence he pled because in part his counsel was ineffective in representing him in that council did not take this very significant evidence and investigated to find out who was the sperm from from the unidentified source what was the evidence a trial going to be as to whether or not there was the such an expert could explore would be even a yes the victim said that there was no ejaculation that an attacker who had penetration would leave d n a evidence such as the precursor to the sperm and an expert to testify as to what you would expect to find when two people come together in such an intimate union in terms of d n a evidence that would be left behind  was no investigation nature of this d n a test results or the consequences of significant of all yes of all facts small and large yes there are factual issues that would be those that would be the time that he probably would be offering proof that counsel did not conduct an adequate investigation that would be pursuant to the evidence you're hearing that would be evidence that he could compel testimony of the attorney who testimony of experts the testimony of other witnesses potentially such as the mother such as the police investigator such as the lab investigators had failed to investigate other than his own self serving statement the california court of appeal rejected that and that's at one fifty three in one fifty four of the excerpt of the record the magistrate judge when he ruled on it's that all you've done not enough to justify an evidentiary hearing he shouldn't be able to go to the state court making unsupported allegation to the california supreme court with the unsupported allegation to the district court with the unsupported allegation and then go i need an evidentiary hearing to prove that you need more of a showing in united states supreme court as indicated in a number of cases that the self serving affidavit is not enough so he is i'm entitled to it now go back and look and i think it's just a call to gather behind matter i suppose with issue is whether or not under a d p i think the answer is yes no your honor does not the answer is of the entitle to a hearing is earlier statements made to the family statements made to contemporary statements made in court an affidavit from counsel there's no indication at any time that this petitioner has made any effort to get anything  we see all the time federal hades cases in which there is a letter or an affidavit or something from counsel all we have from this appellant is the statement over and over again my counsel didn't investigate and nothing more that should not be enough to trigger an evidentiary hearing moreover i don't think it's an evidentiary hearing as these claims are an exhaustive if you look at the excerpt of the record of sixty three the magistrate judge points out when he went to the california state court he just kept talking about medical reports he never submitted the report he never talked about d n a it wasn't until he got to the federal court that suddenly the report is produced and we're suddenly talking about d n a results the case is talked about the fact that you have this was pre sentencing to be free yes but the first caveats in the state court of appeal was post conviction he never presented it to the court of appeal he never presented the california supreme court and it's like you know pulling a rabbit out of because instead of saying d n a report he wrote a medical report he forfeit his rights because he referred to a medical report he had the report and did not submit it to the california supreme court has failed to exhaust that claim to the california supreme to been twisted harder than this one just based on the record with the results of the d n a report so hard to figure out why a defense attorney could made a defense out of that or pursue it somewhat further than this attorney is at least alleged to have done defended yes that by itself gives a great basis for a defense and great motivation that can be attributed to her testimony and her claim of rape which at first was a call that didn't the jennifer i defend and even though she knew the defendant was doing just that by itself  head and said if you can't get reasonable doubt out of that you're not trying very hard you know i may have been other evidence i clearly accept that but the facts here are very peculiar and put together with a guilty plea which seems to abandon as i say arm twisting at its finest doesn't the that that that is of background give you some sense and something strange is going on here not necessarily your honor first off he never petitioners never claimed he was forced into the plea all these ever question was how do you know when the results of the medical he wouldn't flip well when i went through all the filings in state court for exhaustion that's things me mostly what he was saying i didn't want to do this i didn't do it but they said i never see my family going to get sixty years or so and then you read the record of what happened it's pretty clear he was not