single paragraph regarding claims three and it's a paragraph that is riddled with errors that i want to run through very briefly first judge hollows states that petitioner failed to exercise diligence in developing this claim which appeals then to the california supreme court you have the text of that petition at page five it was identical in both courts judge hollow says that mr martin wasn't diligent because he never filed a motion an evidentiary hearing in those proceedings hela fornia has no such motion unlike federal procedure there is no need for any motion in order to obtain an evidentiary hearing in state court as i'm sure you know it's an original re that the lawyer when you're going to effect of assistance by making him testify well i can't even understand that there's no way to make somebody testify as per counseling somebody to testify or advising him to testify that seems certainly full of both damaging and useful information from an affirmative defense perspective one thing they made very clear to the lawyer is that he had a brain damaged clients who have serious comprehension problems the lawyer had here  had a psychiatrist and psychologist who were going to say your client's a little dominant a little nuts but he but i can't say he didn't know what he was doing and then the best way to prove to the jury what the lawyer wants to prove to the jury is my client is such a nitwit that he didn't know what he was doing he couldn't he wouldn't know from one moment to the next what was going on big surprise to him that they kidnapped the guy that they put in the trunk of the car at best way to prove that since psychologist aren't that good is to put the client on the stand and want to make an it would have them so off putting the client on the stand to deny intent completely apart from the mental health issues in this case which are related to intent but whenever you have an participate even in a way that could reasonably be construed as aiding and abetting by the prosecution in the kidnapping and that he did not know and you are saying that if the lawyer had only persuaded the guy not to take the stand the jury would as to assessing the credibility of the statement itself and that does involve a mental health issues the other goes to the other witnesses against my client first when the jury is asked to infer from circumstances what someone's intent was here whether the defendant knew of the criminal goals of his colleagues and shared them you're inferring from the circumstances based on assumptions we all make about how a normal mind when you have someone who is brain damaged and not making the same interpretations of other people's behavior that an average joe would the same reasoning doesn't apply and the defen needs to be able to argue that and it had opportunities to do so which are documented and the declarations we submitted on this claim the declaration of the defense investigator about the availability of special education records client on the stand who he knew was an able and dr globus is it's to conceptualize his own story and he provided the prosecutor with their closing argument which was you don't believe this man or the defense theory because he really quite strong there were three witnesses who were present on the evening who did not who did not witness the abduction itself nor the shooting but who were in the apartments into which the men came and went during the night three women every those three provided what was at best very very shaky testimony they had personal relationships with the other co defendants reason to this gamble potential liability of their own that they were trying to minimize by cooperating with the prosecution against mr martin but again on this issue what started out a claim three i want to submit that the investigator fully in the declaration least five fully supported the contention that mr martin did not understand that he had a right not to testify he did not want to testify and that the lawyer had no interest in making sure he understood his rights and giving him the opportunity to effectuate them i think that that's still when you're doing it when you're defending a criminal case is my client takes the stand and frequently will be disagreement among the various people involved with the defense about whether it's a good idea the fact that the investigator thinks that the lawyer was making a terrible mistake to me has waited all i don't understand why that you were going to think well of course the primary evidence here is mr martin's investigator to do various things for you and maybe you'll listen to his feelings and advice on how your client's going to do but it's your decision when it comes down to an ultimate attorney decision of course that's true but here the declaration of the investigator corroborate