was wrong to trial the prosecution claim that the four casings recovered at the scene were fired at the scene and that they were all fired by hanks to as their witnesses claimed but the testing that's now been ordered by the lower court shows that those casings came from at least two and possibly three different guns whatever theory the state now offers to explain this result there is prejudicial constitutional error that should be remedied by this court the claim i'm discussing is ground one sub section four which is a claim of ineffective assistance of counsel and because we all agree that this claim wasn't raised in the state court is filtered through martinez because we also claim that post state post conviction counsel was ineffective for not raising this claim before is because i just want to note that ground one for is a subsection of a much larger in effectiveness claim and we did not do the martina's were the merits inquiry with those claims because the judge ruled that they were that they unlike grounds for should be procedurally dismissed and in my briefing in the uncertified section i explain why that result why that ruling was wrong or at least debatable i think it would why i think this ground can stand on its own as a basis for a leaf i think it would help the court's review to grant a ceiling on that issue to look at the whole context of this icy claim but proceeding on ground one for i had asked for discovery in the lower court to develop the claims in the court granted and i might if i jump ahead if you don't mind the district court found just quoting these test results did not support a conclusion that one of the bullet casings found at the scene was shot by a different gun from the other three and says goes on to say the photograph of the bullet makes it obvious that the bullet casing number four was not recently shot the bullet casing was tarnished and corroded and  plainly settled into gravel and debris over time so that's his conclusion is that it wouldn't made any difference so what's wrong with that the conclusion the district court judge made was based on this theory that the state introduced i mean this case these pictures were taken in two thousand and six in this case had gone on for ten years before those testing results came in and not one person had ever notice what judge me and concluded which was that the one casing seemed to be from a different shooting than the other ones that the prosecution had specifically said in their opening statement that those four casings were the four casings from shooting i disagree with the analysis of the photographs i agree you can hold up to it photographs and case number four might appear in the photograph to be different from casing number three  i am i correct in understanding that mr i think his name was wentworth yes the lawyer i believe he testified that your client told him there was a mistaken identification that he w even there is that wrong or isn't right no that that was not that i don't think that was ever the issue here i mean i think the undisputed fact was that this group of young men came to our hands ten was to sort of follow up on an argument that happened earlier in the day i think what you're referring to is this dispute over what theory of defense the lawyer should have presented well that's right would you because you're alert that you're alleging ineffective assistance and he alleged to his lawyer at the time of trial that was a he's not saying that in the sense that he's not there he's saying that somebody else was the person who shot the person who was the alleged victim but whether it was that or some other defense the idea that the testing would have helped that defense as well as it would have helped any other defense because it would have shown that there was more than one gun fired at scene let's assume that your your client claims i wasn't the shooter doesn't matter whether there were by one other person or twelve other it does matter and the reason why these casings are so important is that this case without the physical evidence is a five alarm mass for the state they have these two groups of young men who were involved in this gang related shooting everybody runs away after it happens nobody wants to cooperate with the police everybody has a criminal record people make statements that contradict one another what the prosecution does have is they have witnesses who claim that four shots were fired by han and they have these four casings that were recovered at the scene so we've got four casings this corroborates what our witnesses say so to go back to what i saw the beginning now we know now that's wrong you know those you know whether that fourth casing there already as the state is now claiming or whether it was from the shooting as they had claimed for the previous ten years the evidence doesn't match what their witnesses say and again the state didn't make this argument until the testing results came in up until that moment it was these are the four casings that were fired by hank stin at the scene they changed their theory when the evidence didn't match it anymore and i suggested that's not just wrong but that it's a bit disingenuous again the photos that the lower court looked at and made the decision based on have been available from the beginning to every prosecutor and every police officer and everyone else who's been involved with this case and nobody ever said you know one of these casings is irrelevant because it's from a different shooting the other point that i've made in my briefing though is even if there is merit to this theory that the state is advancing now we're just trading one problem for another because if it is as the judge will conclude concluded obvious that one of these casings is from an earlier shooting it should have been obvious to the prosecutor but he said the opposite to the jury what's been happening here is the state has been misrepresenting evidence to the jury and to the courts for ten years to defend mr hanks since conviction one way or another we have a problem here and it should be remedied it was erroneous at least for the lower court to decide this case just by holding up the two pictures there are better ways if the court believes that this issue should be explored at all to determine the age of the casings we can have a hearing where we can hear from for example the crime scene investigator who collected these casings in their original condition and it was never claimed that one of them came from a different shooting than the others you know if it does appear even if it does appear that the state is right and there is still th aspect of the claim mr hanks and should be granted the opportunity to amend his petition to allege it and as i said at the beginning there are other ineffectiveness claims here too that relate to these issues of what theory of defense should have been raised and we should have a fair opportunity to consider all these claims together rather than just this one claim in isolation so i would reserve the rest of my time  good afternoon your honor society parry stern on behalf of respondents the police the fatal weakness of mr hanks as claimed before this court is the fact that given the evidence and the information the trial counsel had at the time of trial he was not ineffective for deciding not to test the four casings at issue here he had no evidence that anyone else at the scene had a gun except for hanks then three eye witnesses testified that hank stone had a gun one of whom andre gibson the victim saw hanks didn't shoot him that was corroborated by the fact that he was shot in the stomach facing the person who shot him in addition darryl newton and kevin washington both either saw hangs down with a gun or saw him attempting to pull a weapon out of his pants to lift it up to shoot at their group in addition thanks to never mentioned the idea of self defense as a possibility to raise a trial trial counsel testified to this at the have a denture hearing before the state court the state court importantly found counsel to be credible in addition other  witnesses would not come to trial they had nothing helpful to offer this also came into evidence at the evident cherry hearing where as police statement from shane harris who was one of the other people purportedly there at the time of the crime said he had not seen the shooting later on we have an affidavit from my kill another potential witness also saying he had not seen the shooting and so in short trial counsel did not behave objectively and reasonably  making a strategic decision to go with an identification defense in fact if we look at the end of trial when mr hanks and his making comments about his attorney he doesn't raise this idea of self defense or another shooter what he raises are things related to well they couldn't see me because i had a black or gray sweatshirt it was all related to this misidentification defense that was trial counsel's concern and it was mr hanks and concern at that time and i think the concern here is if you don't investigate properly you don't know what your strategic options are so if he if he tested ordered testing of the casings he might well of advanced the theory of self defense for a second shooter or as counsel says he might have said that's not inconsistent it shows that there were more than one gun at the scene that's correct your honor it's it's not the standard trial counsel is held to however on the review that we have before us which offers a lot of deference to the strategic decision of the trial counsel but it has to be based on a strategic decisions have to be based on reasonable investigation so i think that's that's where we are in this case is that was it and you've articulated some reasons why  was unreasonable for him not to investigate the case yes and so i won't repeat what i've said but i believe the evidence in existence at the time made it reasonable not to test them in addition he could have tested them and found they all came from the same he didn't know they they could have undermined his entire defense so at the time he had to decide what to put his energies into i think he rightly decided to put them into investigation of witnesses rather than the cas s in addition i want to talk about the prosecution's theory at trial a little bit because mr hanks did in his appeal makes much of this idea that the prosecution's theory at trial was that there were four shots fired that was not the prosecution's theory at trial however their theory at trial was that mel hanks didn't attempted to murder andre gibson by shooting him directly in the stomach point blank and that theory is not reliant on there being four shots now it is true that some of the witnesses said they heard four shots one of the witnesses under gibson said he heard three or four and the only place where we see the prosecution referring to these four shots is in opening argument and sort of an aside as well as during closing and if we look at how these four shots were used by the prosecution during closing they were used as one of several elements to show intent and if you switch out that four shot argument and put three shots instead or even two shots the argument for intent is just as strong as as it would be with four shots so that just simply wasn't a route i wouldn't say it wasn't relevant wasn't material was not crucial to the prosecution's theory at trial and when the federal district court in this case examined the cas i also want to point out that brief says that it is improper for the district court to have relied on the photos alone that's not what happened the federal district court in this case did what he was supposed to do which was think as a juror looking at the evidence that the jury had before them and adding this additional fact that one of the casings came from a different gun but it's still unknown when that casing was fired he determined that that would not have resulted in a difference at trial the testing of that one casing so he it is incorrect to say that he only relied on the photos  three things your honor first of all the four shots was certainly material to the trial was stated over and over again by the prosecutor in the opening and in the closing they got the state courts to adopt it and it's disingenuous for the state to say now it doesn't matter with regards to the claim that is now being made that the attorney had a strategic reason for not pursuing this testing there's absolutely nothing in the record that supports that what this record does show is that this is a trial attorney who began his fact investigation for this attempted murder case four days before the trial started that there is nothing in the record that shows that he had some strategic reason and indeed the lower court decided these claims soley on the basis of prejudice so it would be the court should not beach that issue if we want to reach it we should have a fair hearing on the matter third the state is bringing up the self defense issue again there's much to be said about that again these are the  certified claims that the district court didn't even reach the merits of that i think that the court should grant to see a way on but for purposes of the ground we're talking about it doesn't really matter whether we're talking about self defense whether we're talking about identity or whether we're just trying to show reasonable doubt the testing of the bullets is highly exculpatory the testing results are highly exculpatory if there is another gun fired at the scene if the evidence doesn't match what the state's witnesses say that's exculpatory regardless what the specific theory of defense is the specific theory of defense should have been self defense because that's what hank stone has always maintained in because there is a mountain of evidence that could have been discovered by the lawyer to support it and i think that's a matter that should be fully explored by the district court on remained but for purposes of this claim the fact that we now know that the evidence doesn't match what the witnesses say would be enough to find constitutional