us on all of them but did grant us initially a certificate of appeal ability as to the issue of ineffective assistance of trial counsel she later expanded the c e o way to include our claim of a suggest identification procedure with regard to one of the so called eye witnesses we moved in this court once we had filed our claim of appeal to expand the c e o way to include  the requests for discovery that we had made which the court denied and this this court also denied refused to expand it so that's not going to be before the court and that's not going to be part of my argument except perhaps as an aside that trial counsel actually did not investigate the witness who claimed he was ineffective for not presenting the only thing i want to say your honour's and again i'm very grateful that you agreed to hear our oral argument is that we contend that both the district court in the michigan courts made in an reasonable finding of the available record concerning what evidence we did present concerning the abs witness joyce will it when she testified or she did not testify but in her affidavit she said that she had been contacted throughout the day by mr potato and most likely also during the timeline the prosecution's timeline of when he was available to have killed his wife the michigan state the state court said that that her affidavit was vague and would not have prevented the jury from finding that he could have killed as white during the afternoon of november twenty fourth and the district court said agreed that her her allegations were vague and that therefore under the presumption of correct established under the age d p a the district court had to affirm but both of those courts misunderstood that miss willetts affidavit we contend her pro testimony which we can't consider considered with the phone records completely vitiate the prosecutions of her own records as i understood it the phone records establish she was able to identify even in her affidavit the particular fax numbers that she used they were faxing documents back and forth to get to get ready for this big g m hearing the next day and although it's true this number so no i'm sorry that i would that think we wouldn't care much about what she sent we would care what he sent and when edge added inordinately it's not their counsel i have to agree with you i'll be honest she does not say i specifically remember him faxing me something at three forty eight or three fifty seven but in fact i thought that the best she could do for him was twelve forty five throughout the day eneral throughout the day that's i agree and then she's able to pinpoint the fax numbers that she and he would have been using or he would have been using and we think that goes a long way towards establishing a substantial defense and that is merit fact that is the standard for ineffective assistance of counsel particularly as it relates to alibis is it a substantial defense where yes it is and that's just abolition alibi is very substantial i agree i agree and i think that this does that but that's where the courts disagree with you and i haven't heard you say anything that nails it right it has to be otherwise it's futile when i disagree with that you know i thought about that when i when i was sitting back there one of the judges is going to say well an alibi means you have to show that you were with this person within eyesight for every moment between one and three i don't think that that's what an alibi really is i think this establishes that she and he were in constant communication by phone and fax throughout the day and that if the sevens had been presented to the jury they really there's a reasonable likelihood that they would have had resettled out i think that's my argument your honour's i think this really is this characterized as something other than alibi evidence it's really effort to offer some evidence that shows he was engaged in activities other than murdering is why on the afternoon of november twenty fourth well that's another way of looking at which i don't really think alibi well i tried i was looking up the definition what is the strict legal definition of alibi it means you're elsewhere in the latin so you're right he was elsewhere other than killing his wife so unless are some other questions your honor that is my argument and as i said i did not research any rebuttal and i'm very very grateful that you allowed me to be here good morning your honors may please the court because from the michigan attorney general's office on behalf of police stephen regard the state courts in this case affirmed petitioner's conviction for the brutal murder of thirty year old tampa tamra of the district court denied him hey b s relief and the state asks this court to affirm that denial because petitioner hasn't shown an extreme function in the way that the michigan court of appeals decided his cl for it i do and it is necessary in order for him to be as relieved to be granted to show that there was an extreme malfunction in the state court system and here petitioner can't show that there was i will address his claim regarding trial counsel's alleged ineffectiveness for not investigating or calling joyce well it and relief is not warranted on that claim because petitioner cannot establish either let alone both or show that there was no reasonable dispute that the state court in this case was wrong as this court knows strickland is a very general standard in state courts have more leeway in applying general general standards and the state court here did reasonably apply it regarding the performance prong there was no evidence before the state courts that trial counsel in this case did not contact choice well it he knew about well  according to petitioners own affidavit and assisters affidavit he told petitioner sr that he would contact or will it in her initial affidavit didn't say that trial counsel didn't contact or and the petitioner can't show deficiency based on a lack of evidence and the supreme court and bert said that with respect to the four seventeen video deposition  the district court and this court did properly deny petitioner requests to expand the record and that's because a petitioner can't expand the record on appeal according to collin v penn holster and this court's decision in bal r but even if this court considers that statement in the delayed deposition it would not have been constitutionally deficient for trial counsel to not further investigate while it were to call or a trial given the fact that the statements in that affidavit she made were very vague they were very speculative she was not an alibi witness an airtight alibi witness or even an alibi witness and she can't establish that  petitioner was at his office past two or even twelve forty two in the trial of counsel in this case he was a very experienced trial attorney knew that there was no way to tell who was making these phone calls and he had other evidence  ding his client's own statements that petitioner was not in the office on the afternoon on the twenty fourth he petitioner made recorded statements to his secretary that he left at two that day there was also other evidence that no other coworker including a secretary saw him in the office that afternoon his last computer usage was twelve forty two pm and rather than spend time and resources on following up with will it  calling her a trial knowing that she would be such a weak witness trial counsel in this case decided to focus the defense on the victim's death being the next day and he called a renowned forensic expert to testify to that and support the defense he vigorously challenge the prosecution's case including the two witnesses who said who said that they saw petitioner on the twenty fourth near the victims near the dumpster near the victim's apartment  and made a lot of argue other arguments including that the police did a shoddy investigation that they were biased against petitioner no physical evidence against petitioner and what he did with the statements that his client made that he was in the office only until two a city use that to argue that even if the prosecution's theory was right and the victim was killed on the twenty fourth the one thing anybody would want is an alibi or you know to establish his whereabouts during that time frame and he argued that you know petitioner when he was talking to a secretary why did he say that he was there from ten to five know that that he was there from time to do it and that showed that he had nothing to do with the murder but the focus was on the murder being the next day that was the primary focus but the council did have a response to the prosecution's theory that the murder happened the day before  mentioned this trial attorney was very experienced he was a tough advocate he was a former federal prosecutor he had many years of experience during trials he had the first jury in this case to hang which was pretty remarkable  did retain this renowned forensic expert any vigorously argued on behalf of his client both before trial and during trial and the trial court at the end of the second trial praised both attorneys for for doing such a great great job and as as strickland a trial attorney a trial counsel is not required to pursue every defense regardless of its chance of success and i think trial counsel here made a reasonable decision to not call or pursue calling joyce well that as a as a weapon this petitioner also can't show that the state courts lack of prejudice ruling on this claim was an extreme male function the petitioner mushed affirmatively show prejudice and the likelihood of a different result must be substantial and not just conceivable for many of the same reasons that i mentioned earlier well it's statements  that the police mentioned in advance of the photo array that to the witness that the individual drove a blue g and i guess the implication is that  the witness may have remembered that many years ago around the time of the crime there was an individual who drove the jeep that the witness could remember and then the claim with respect to the identification procedure regarding david jerome the problem with with petitioners claim is that he can't establish the factual predicate for it in other words he can't show that there was no improper suggestiveness by police at the initial questioning when they were canvassing the neighborhood trying to figure out what was going on at the apartment informational meeting which took place ten days later or in giving jerome the photo array several months after that there's absolutely no evidence that the police steered jerome into identifying anybody in the photo array the photo array consisted of six pictures of computer generated pictures and the police the evidence on the record shows that the police gave the array to is there anyone is there anyone you can identify as today one look familiar regarding in july of one nine hundred ninety eight as far as the car it was jerome that had identified he claimed he had noticed it was you know the type of car earlier before he was shown the away so the police didn't didn't taint him or suggest to him that this that this was the car he had he had himself in his initial statement mention that he described it as a black sedan but then later he explained that he referred to all four door car as a sedan as a dance and he gave more specific more specific statements about what he saw that day vague and i think it was because the police weren't weren't doing questioning as detailed questioning but yes in this first statement he wrote that it was a black sedan and then he said at the apartment informational meeting that it was when when they showed several pictures of vehicles he said that it was it was a jeep a chrysler product a jeep and then later he expanded on his statements and explained in more detail but he is the one that brought up that it was a jeep an older model jeeps of the police didn't the police didn't taint his statements in that respect and i do want to point in applying the the the the defendant it wasn't made until the second trial but that isn't correct jerome identified identified petitioner as the man he saw on the twenty fourth in his statement made in july of one nine hundred ninety eight and he was certain that as of that date as to who he saw and he was also certain at the preliminary when the preliminary exam testimony was was read into the record and he was also because there was no improper suggestiveness trial counsel in this case was not ineffective for trying to suppress those statements or for conducting a preliminary hearing it would have been futile but what trial counsel did do and reasonably did is challenge the reliability of those statements at trial through cross examination and i just want to point out that he did that extensively nearly one hundred pages of cross examination of this witness about the changes in the statements about the lack of completeness and he cross examined this this witness very thoroughly and he vigorously argued in closing about the problems with this identification so and i also do disagree with petitioners claim that the michigan court of appeals only addressed the photo array and its opinion the michigan court of appeals stated the petitioner failed to identify any suggested identification procedures and that is true because there is no record evidence of that just briefly going back to the an effective assistance claim regarding well that the michigan court of appeals reasonably found no prejudice for many of the reasons i indicated that testimony or statements in the affidavit were vague and the prosecution also would've destroyed her on cross examination her vague statements her inability to put petitioner at his office in the afternoon and even with that testimony and this is what the district court said the jury could find that she talked to him in the morning and that he killed the victim in the afternoon particularly where there was other evidence including petitioners own statements that he was away from the office in the afternoon and her testimony regarding petitioners normal behavior on the twenty fifth was cumulative to other testimony and i also just want to point out briefly the very strong evidence in this case there may not have been direct evidence but there was very strong evidence motive and very compelling circumstantial evidence and at page id of the record for forty three to seventy one the prosecution under direct appeal supped worth you know in detail all the evidence against petitioner including the fact that he threatened to kill the victim just a few months before he murdered her after he chased her down the highway his history of violence toward her evidence he was furious that she had filed for divorce and that she was he was furious that she was going to testify against him on a couple of this demeanor cases that were pending so there was there was a great deal of evidence against against this petitioner and council's decision or failure to college joyce well us as a witness there's no recent probability that would have made a difference in any way at th trial as this court is aware hey vs is an extraordinary remedy and the state respectfully ask this court to affirm the denial of habeas really and i'm happy to answer any other questions otherwise i'll rest