serving a seventeen year prison sentence tax completed already six years of that sentence in a case in which a questionable show up a dedication procedure was the centerpiece of the prosecution's case against him yet mr gaines has never had an evidentiary hearing in any court either at the state or the federal level to actually litigate the merits of the claim of whether that identification procedure violated his right to due process of law the substance of mr gaines claim in his abs petition was ineffective assistance of counsel his trial counsel had actually noted a motion to suppress the identification and its trial the trial counsel was prohibited from arguing that motion by the trial court because he had to fault it on the issue he failed to follow the stake or rule which required him to file a written brief regarding the difficulties and after mr gaines was convicted he then asked the t the facts that we know is that my question you know i ask you my question what facts about the show up are into something whether ms rather for the eyewitness in the case was unduly influenced by the conduct of the police officers historically what happened what do we know what him ok what we know about what happened is that the witness in this case was transported to the scene where mr games was waiting in handcuffs next to a police car she was incorrectly told at some point during that process and it's unclear from the record that mr gaines and his companion had been stopped in a stolen car that in fact was not true he wasn't stopped in the store car at all so she's given information on the way that in fact the person she's about to look at is a criminal or has been engaged in criminal activity that statement was untrue which i think it's pretty suggestive right there yeah i believe it's suggestive but at the same time you know this was not to fully developed another fact that's in dispute is whether the that would be in dispute or now that you're hearing is whether miss rather further witness actually asked to look at mr gaines a second time and whether that was suggested to her by the police i think you know again based on the scarcer record that we have i think one could argue either way that was not fully developed and i would have been critical i think usually she said that she was not sure when she was allowed to view mr games again in handcuffs and spotlight the second time she was told i think again i'm inferring the best i can from the record that we have she was told to make sure she concentrated on the space and it was at that point that she made it jennifer cation felt like that suggested right there but that seems to be what everybody was told to look at him a second time and really concentrate on his face that she was told incorrectly on the way over that he was engaged in other criminal behavior when he was picked up what what's taking the facts in your client favor what is your legal argument under the standard for review that we are required to apply given the facts that are in the record and i said said this repeatedly given in the briefing you're right i don't think we can meet the standard i don't think there's enough there conducting an evidentiary hearing the first thing that i would do is paid an expert to talk about i would consider vacation and problems of suggestibility and the difference between you know certitude first as accuracy that would be the number one step that i would take and then everything else i think relates to actually fleshing out the record that does exist and having this rather further testified focused on the fleeting duration of her encounter with the defendant she focused on her limited incentive to take notice and at that time because when she first saw him he was walking into her store she was walking out of here no reason to believe that robert was about to place that when she saw him again pleadingly after that he was wearing a mask you know these are all things that need to be explored and i think in many ways we're talking about a question of degree of factual exploration that was done in the trial  court as well as the trial to my job i think with the witnesses who actually testified at the trial my answer would be it's a question of the degree of factual information and then the one used facts that i think would be critical with me to seek out and to introduce are no additional facts he never states what additional facts those might be there is no factual dispute in this particular case just the desire to present expert testimony and constitute the kind of additional evidence that performance by trial counsel but the washington state courts is not just the superior court we're talking about the washington court of appeals and the washington supreme court those two are state courts and nothing prevented mr gains from submitting claims are outside the tribal court record it's his for to submit confident evidence such as in the form of affidavits which would suggest which would support his claim that mr gaines didn't do that in the washing court appeal lets the procedure into the petition i would like the court to review the entirety of the trial court transcript my understanding is i submitted volume one of four volumes to the district court as part of the status petition and part of my answer only because i was focusing on the developed and the court has question counsel as to what additional facts those might be and the response as i understood it was that mr whether this respite was unduly influenced by the police well that's a legal argument that's not a you take him expert testimony in the sense that an expert witness to say under these knives my opinion is that in her mind she was unduly suggested that there was an image percent it's actually said quote i'm totally sure so when we discussed possible suggestiveness and unreliability as to this show of identification when an individual testifies at trial result that factual dispute the other issue i want to touch on real quickly is that counsel says that nothing prevented mr games from presenting affidavits under state court rules mr games would only have had the opportunity to seek discovery in his