alba's not credible now because there's no dispute as to the the law that's involved and tend to focus on the facts here and of course focusing on the facts and of course confronted with clear review which normally would be quite daunting but i think in this case this record reveals that clear errors manifest the district court ignored significant substantial parts of the record that were contrary to fact mining district court made findings that were completely belied by the record and what could have been presented by the defense that it is obvious that mr coke is performance investigation performance throughout was the business turning first to the state side of the case to what the  states what was presented what could have been presented what wasn't presented the state's case were on the side charges hinged on an alleged beating of james williams mr williams was supposedly kidnapped beaten over seven several hours that mr williams was at the scene of the murder he was there right after the murder now in his statement in the eventual trial testimony of the two young girls who testified against mr watson he was beaten severely and topped off in another part of oceanside but lo and behold he's at the murder scene right after the murder happens and he gives a statement to police right after the murder happens and what does he say he says i was walking over to this hotel  i saw a thunderbird speeding away i was walking over to see it see a woman that i wanted to visit at the motel saw thunderbirds speeding away with something like five black individuals in it at that time district mr williams makes no remarks about any sort of beating there's nothing in the police report this done about the statement indicating any sort of beating that there's blood on him that there are injuries on him that he is upset anything like that it's only five hours later that mr williams comes up with a totally different story  mr williams is a gang rival mr watson that's acknowledged mr culkin knows that five hours after this initial statement mr williams has this grand story about oh i was kidnapped i was severely beaten the people that kidnapped me were in that car in a thunderbird it wasn't it was a cougar nothing more about i was coming to this hotel just to visit this woman now i was coming here apparently to find my friend who i gave up this location and these people who beat me was zooming away now as i don't know exactly why didn't testify mr culkin didn't contact him i talked to his attorney said mr coffey never made any effort to get touch with mr williams that probably because he was a totally unbelievable witness his story doesn't this case after holding an evidentiary hearing found among other things that the alibi was a lie i mean i put it in more stark terms them and then the district court did that the district cour heard live witnesses and and and held that the petitioner in the alibi witnesses were lying and basically that they cooked up a story and rehearsed it after the fact that was the since i got firm from reading the district time i'm asking you about it it's far as the credibility determination i grit your honor the district court's holding is a little bit unclear is the district court finding that the alibi itself was incredible or is just a court finding that mr polkinghorne reason to believe that the alibi was incredible as to the former i think that's a fair finding because i wasn't permitted to present several alibi witnesses number one number two it's an appropriate finding because this court when it can't can't we or the district court look at that in terms of whether there was any prejudice and failing to allow a defendant to assert while i was never there if there is strong evidence on the other side of th m you seem to be saying theoretically that we could never even get there i think well this court case is examining prejudice look to was the case what could have been presented generically was it in especially the case of the alibi it's very strong as compared to how strong is the case the court the state's case and in this case you're saying we cannot look at whether the alibi makes any sense or whether it's credible well i think the i'm assuming now for the sake of my questions that it should have been and don't we still have to assess whether it would have made any difference well perhaps in some cases that doesn't seem to be the trend in the in the cases that i've reviewed with this court  prejudice analysis seems to look at just the strength of the government's case but in this case that would be an unfair conclusion because there were several alibi witnesses that i was not permitted to call to mr morgan  i requested subpoenas for all those people that's at eight forty to forty three of the record for white yard pulpy morgan at will and douglas i ended create indicated that i wanted to call additional witnesses at eight fifty seven of the record i indicated that  didn't want to submit a declaration but would like to call the rose at nine twenty eight of the record at the january ninth two thousand and four hearing just beneath is made clear that really all he wanted to hear from were kopi the defense attorney and w watson didn't remember where he was well that's just ridiculous and what he says well mr watson didn't remember where he was was because he was first arrested several months after the murder government counsel gets up at that hearing since that's ridiculous actually first arrested first confronted in jail a week or two after this after the murder happened the relief you see remained for an additional hearing on the issue well certainly that would be helpful to put on everything if there's going to be some sort of finding that that the prejudice wasn't met because these people because alibi it was it was unbelievable or incredible but i think i don't know that i could establish much better the opportunity to conduct discovery if they wanted to to name the witnesses in line if they wanted to and the only witnesses mr burns at one point claim that he wanted a card and i believe it's attached to our reply in our motion to strike the considering all the evidence considering the discussions between watson and pull and the work of the investigator mr allen who investigated numerous witnesses including  that you don't know are you telling us that mr burns was given the opportunity to call bobbi douglass as a live witness and declined to do so i don't recall  i recall a pretrial we had or pre hearing we had some witnesses i do not recall bobby douglas his name coming up during the previous questions i do know that later on earlier argument you rattled off a list of witnesses that he told the court he wanted to call correct correct your honor and bobby douglas his name was not among i cannot recall bobby did with his name being one of those lists no one even your argument here today in pasadena california two minutes ago you rattled off a list just told us that there were witnesses he told the court he wanted to call alibi witnesses and he was not allowed to call them and you're telling us that's not so i don't recall  in list of witnesses correct yes roger and he wound up in fact calling all of those save one correct and and that decision was his decision not to call that witness correct i believe there at that point yes yeah and at the end he then asked the court if he could call one or two more witnesses i think you want to  again and maybe you want to add more witnesses at that time and the state opposed that yes your honor and did that request include douglas i don't recall that you that at that point to the district court have the douglas declaration i am not sure your honor i think if i recall that declaration was submitted with the post hearing responsibility is that the first time that i realized that one wasn't being kept i raised with the district court and said that i want the jury's going to record the next one was on the record five after that or four after that were not on the record i had no idea some were in a court of record i requested that it was being done but but nevertheless this is what happened i requested and this is it eight forty three of the record before the january ninth hearing it's two thousand and four when when judgment is indicated who you would hear from people including urn no i didn't take a hearing that i may seek to call other people as i find them including will wrote i specifically told the judge at the hearing and that is in the record at fifty seven and one twenty eight be to be relevant number one because i knew cokie was going to say stuff that was a lie about turning over the investigation to act well and that well going to see mr watson in jail so i got stuff from people the jail refuting that i got the declaration from bobby douglas establishing the alibi i have that stuff it's all predated from the date of the hearing from the april two thousand and four hearing it's predated i had it with me at the hearing when we got to the end of the hearing which was at six o'clock on a friday i