of his case was affirmed under rect appeal thus far his post conviction efforts have been unavailing nevertheless i respectfully suggest to the court that is difficult to have confidence in the verdict in view of the one witness who was the equivalent of a jailhouse informer who said that days after the thing he was threatened with arrest for car theft he said that he had the defendant appellant conveniently confess to him that he had done it it's difficult to read his testimony in the cross examine of a nation of him and to conclude that the jury could have put much stock in that nobody else saw the again but we can't look at that i mean the y did or didn't that's the testimony is the testify we were not here to determine that jailhouse informants credibility right notes are but extraordinary weakness of that evidence and its vulnerability comes into play when we decide whether or not the state's failure to disclose fully the criminal record of the eye witness the only eye witness is an important material and favorable evidence that was excluded and that we can't be confidence in the interested in is the rationale that if the jury convicted in california mr pickford on the basis of evidence that was cross examined and corroborated badly or not it seems to me that what was not turned over is potentially cumulative potentially irrelevant and not  court should scrutinize when the state courts have already done so well i certainly understand that position but respectfully i don't agree in this case what was not turned over what could have been used effectively and his own lawyer says that in page seventy six i'm not sure if it would have been able to be used because those crimes for were not crimes of moral turpitude i don't know that they would have been allowed to be used for impeachment purposes i'm more curious about the  certified claim being in effect its assistance of counsel and whether or not to certify that it was interesting to me to see so much more information about that in the on appeal then i think was presented to the district court judge i couldn't figure out why the district court judge didn't address some of these significant claims that you're making now on appeal because you claim that there were other witnesses that came forward who say that somebody else did this shooting and i think in light of i'm curious about that because i do know there are issues with the that the i'm not quite so sure why that wasn't presented more squarely or clearly before the district court and i'm wondering what it is we can do about it in light of what i'm seeing because you make claims in the appeal brief you're citing the facts but they aren't really in the record well there are the the case was tried sort of on a shoestring and so is the a b s conducted that way mr picture filed the his family scraped together money for his trial but not enough according to the record to do investigation properly a lawyer get his appeal and post conviction work also on a shoestring acting in the record of his submission to the district court in his petition i don't know why judge hamilton didn't well i think after looking at such think i can see why because the those arguments were not as squarely made or coach atlee made as you have made counsel and they both have said in various forms that they made themselves known to trial counsel how because you don't say that you don't set that out in your brief even i mean it's not set out in the facts from are anywhere from i can see all i see is that somehow they appeared when a defense of mr gator talked to people but there's no there's no indication to me that trial counsel a knew about him or how he would have known about them and that's where i'm a little unclear and i really want to know whether or not supplemental briefing would be helpful on this point it might be your honor i we have dwelt extensively on the british you but we have also raised those matters because in several well counsels affidavit habeas counsels affidavit set forth her interview with these people and then they both wrote to the court at the time of sentencing and said that somebody i agree with you it was not cogently presented in a way that the district court could focus on that's why i think it needs to be further well but the question is did he have his opportunity and he missed it and is it a you know his is an exhausted and i don't know the answer to that question but that's to me i mean the the fact that you say that james carter wrote a letter to the sentencing judge stating the picture was not the shooter and that mr hines and mr churchill wrote letters troubling but i don't know how the lawyer would have known about them i believe your honor that and forgive me all but i believe that those things were brought to attention of the lawyer according to those witnesses i mean you statement of i believe they were brought to his events and i don't say i made up and this point is i just don't know if it's too late and if it's not too late what we can do i mean how we would go about you know i may not be resting that on the but i am resting it on at least this that in the letters they wrote to the sentencing judge they they said i believe i'm quite certain in front of me right now but they said they told the lawyer mr stallworth mr stallworth didn't get ahold of them didn't use them as impeachment against jesse the evidence that was not turned over about the other convictions he doesn't address this this point however it is an allegation made and this is what i mean when i say it is difficult the record is not the best but it's very difficult to have believe it was substantially the same except for being addressed and he was processing yes he was pro se he had some assistance as judge him with a noted from his lawyer but he did a pretty much on his own as his family had tried to do in the beginning and he just wasn't put together well and and he's got fifty years to do for this case and i can revisit just one thing i understand i'm running out of time but i understand your honour's concern about whether those things are cumulative that are withheld i respectfully disagree she presented herself as concerned parents and that's why she lied to the police at first and in various ways along the way i think if the child endangerment could have been brought out effectively the question that and  vandalism is a felony and she's supposed to be a public spirited citizen doing this nothing about her is genuine or real everything would have helped and i believe that those things are as a substantial probability a second dui for a person that says she was cogent focused and sober but a little tipsy even the d a said that she won't be a neighborhood historian well she was called upon to be a historian of a very specific an important event and it's a mess her testimony and anything that was withhel anything there's a substantial probability would have been different had counsel had that thank you well i appreciate that your honor i think i've run out of time if you know i'll give you a minute or so after  you please the court pam critchfield for the state of california i would like to address the question that you brought up and i would like to give you an opportunity to respond to those so did so in state court miss hilberg was it was appointed for him to do is appeal and she also did the state hey b s petition so in the excerpts of record starting at new york twenty five you will see her jackal aeration as to what she pursued in an effort to enhance the video or the videotape of the interview that miss jessie had with the police several days after the incident that is the claim that was raised on ineffective assistance for councils failure to enhance well that it definitely was a pain but it does look like there was some references especially to miss just the son who came forward  any evidence of pretrial preparation nor any documentation of defense witness interviews but that wasn't an excuse me that wasn't the claim that was raised that was that is an excerpt of record to the federal s right but he didn't raise a claim of ineffective assistance for failure to investigate and i think he may have isn't the question because he makes a reference i don't have that exactly in front of me but he makes a reference for him failing to interview witnesses and then the other items that i'm just looking at and i'd like for you to respond is the private investigators declaration that trial counsel did not retain an investigator to perform any additional investigation that's at your thirty eight and then another i don't think are attached actually it's as well the statement is that you are seventy six after the trial of the private investigator spoke with jesse send cheryl who said pickford arrived at the scene after the who's the other corroborating witness lied in pick for its case so that rich they could get out of jail which was brought out at trial he i mean he admitted that he was they were just and he was getting a favorable this sensation on his stolen vehicle charge for test but he didn't admit to lying nobody admitted that he yes and of course if you read the testimony and you read the cross examination mr stallworth i respectfully disagree with davis counsel did an excellent listen you're going to get a large number of facts ok the ninth circuit's if the issue is not certified for appeal we should liberally and easily investigate was never raised it would have to be exhausted in state court that was not presented but we don't know if it will as you say that but maybe you could respond to that in a supplemental briefing because i'm not so sure that it was i understand the point you're making and the question for me is how much is enough because he did raise some of these certainly raise the general jesse so i mean that just gerald is all hearsay and you need declarations for a valid claim in all due respect you need that the declarations from those people that's the standard and this is what we have are affidavit saying this is what i think this was and why it wasn't why didn't she had her chance to go do that presumably because she couldn't get declarations from those people and he made she was being paid i'm i'm just you baby ultimately correct i'm just i'm just sharing with you my concern at this stage in light of what was raised and what we should do about it and your position if i understand it is you don't think there was enough we should insert a no i don't think you can expect the state court or the to weed through when a claim isn't presented directly to weed through and say oh look here there they can't act as counsel for this for for well in the end she would he had counsel in state court so she needed to present the claim and i submit it's because she didn't have a claim so it wasn't before the state court and it wasn't before the district court and at this point it would be untimely it's a different claim it doesn't relate back or years later that now i agree with you that the claim of i a c for failure to enhance the tape is probably the claim that should have been certified by judge hamilton rather than a brady violation on that because the there is no brady there's no support suppression the state turned over that that videotape to the d a turned it over to the defense lawyer and the defense lawyer at that point if in fact what claims is true which i have to completely disagree with that he could have gone to enhance i'm sorry your honest stay with the fair work finish your argument as to i don't really care what your view of credibility is i want to know what your argument is on what you're trying to say there as far as the as far as the action moved your next point ok my point in the claims that were certified is that the evidence that first of all that there was no suppression as to the enhanced version of the tape and second of all the as to the impeachment evidence none of it was material though you're saying we should expand the certainty of of appeal billeted to deal with ineffective assistance of counsel on the witnesses the judge maria was talking about we should instead expand it to deal with the issues that banded as to the ineffective assistance claim there was no prejudice so there's the claim judge hamilton discarded the claim and disposed of it on you said he should a certified the witness issue for us to look at no what are you rolling your eyes like that i'm i'm not i'm sorry i'm not i didn't say that it should have been certified i think what i meant to say was that the way it's been raised by is certified your point is that i suppose in the most troubling claim that that is that there might be two witnesses out there m be two witnesses out there who would testify that someone else was the shooter or that pickford was not there at the time of the shooting and your point is counsel had time and opportunity to impeachment i know your arguments were i think in the brief that they were not crimes involving moral turpitude is that right correct so they probably likely would not have been committed or admitted but he does raise a point now i wanted to portrayed as a concerned father whether it was in a crime involving moral turpitude or not would not not have been possible for m p h like it possibly she he was first trade as a liar that was the defense that she was lying and the what they used was the all the inconsistent statements that she had made to the police and at the prelim and then versus trial so if you read the closing argument that was mr sellers argument i don't believe there was an argument that she was a good mother there were a few and the da certainly never referenced it in his closing there were a few references to that she had this fifteen year old son who when mr picture came around she was worried about him you know somehow harming her son but i don't believe it was this at all it was very tangential to the case  say it's not necessarily whether it's individual impeachment is admissible it's whether it can be used to impeach these things could be used to impeach effectively i believe and i respectfully urge that in a case this close depending on that kind of witness that anything is excluded has to be scrutinized very carefully when she lied to the police station she said the reason was she was concerned for her son and i think from that we we can take that this evidence could have been effectively used and  did you try to find these two witnesses who ostensibly would say that your client either wasn't the shooter or wasn't present at the time of the shooting here i refer this to the high watermark there was to inquire  further of the efforts of the investigator who i'm acquainted with and with with state here his counsel they said they could those people didn't want to come in it would take the process of the court to force them to do that and that had not been should be done and i think it should be done still if there's a form in which it could be done to get it right i think that they could be required to come in and so could the son who's in prison right now in louisiana with his mother is also in prison for new charges but i think that this was never affectively litigated and i can see that and i think it should be in and i mean cappy to rebury fit or to or to handle any remain and to clear it up the can be done thank you thank you very much